Discussion
34 The decisions of the Full Court to which Dr Wenkart's current Interlocutory Application is directed comprise a decision to grant Mr Pantzer leave to reopen for the purpose of allowing him to tender the 25 January 2002 letter and then a consequential decision to admit that letter into evidence in the Appeal and in Mr Pantzer's Cross-Appeal. Dr Wenkart submitted that those decisions should be reconsidered because they were apparently made without the Full Court paying any regard to paragraph 29 of his Cross-Appeal Reply Submissions. He suggested that this was so because the Full Court did not expressly refer to that paragraph or to its contents anywhere in the principal judgment.
35 Branson J refused Mr Pantzer leave to reopen for the purpose of tendering the 25 January 2002 letter, amongst other things. Her Honour did so in Branson No 3.
36 At [148]-[155] of the principal judgment, we endeavoured to explain the essence of her Honour's reasoning in Branson No 3.
37 At [26] in Branson No 3, her Honour said:
The additional evidence sought to be adduced by Mr Pantzer is:
(a) a copy of an affidavit of Mr Holden sworn on 5 December 2001 in a Supreme Court of NSW proceeding;
(b) the copy bills of costs referred to in [66] of the reasons for judgment of 11 April 2008 [referring to Branson No 2];
(c) a copy facsimile transmission dated 4 December 2001 from Cutler Hughes & Harris to Mr Alan Jessup of Hunt & Hunt, Dr Wenkart's then solicitors.
Her Honour did not refer to the 25 January 2002 letter at [26] of Branson No 3. Instead, she referred to a letter dated 4 December 2001 from Cutler Hughes & Harris to Hunt & Hunt.
38 Regrettably, her Honour misdescribed the material which Mr Pantzer intended to tender before her had he succeeded in his reopening application.
39 Mr Pantzer's reopening application before her Honour was supported by an affidavit sworn by David Robert Samuel Creais on 4 June 2008. At paragraph 3 of that affidavit, Mr Creais described the material which Mr Pantzer would seek to tender were he given leave to reopen in the following terms:
(a) A copy of the affidavit of G A Holden sworn 5 December 2001 in Supreme Court of NSW, Equity Division, proceedings 5137 of 2001;
(b) the "Bills of Costs", copies of which were enclosed with the letter dated 16 January 2002 from the first respondent/cross-claimant to Hunt & Hunt which is referred to at paragraph 66 of the Reasons for Judgment in these proceedings published on 11 April 2008; and
(c) a copy of the facsimile from Cutler Hughes & Harris to Hunt & Hunt, dated 25 January 2002, a copy of which is annexed and marked "A" to [Mr Creais'] affidavit sworn and filed in these proceedings on 21 May 2008.
40 All of the documents referred to by Mr Creais in paragraph 3 of his affidavit sworn on 4 June 2008 were exhibited to that affidavit.
41 It is quite clear that the document referred to in sub-paragraph (c) of paragraph 3 of Mr Creais' affidavit sworn on 4 June 2008 is the 25 January 2002 letter and not the letter dated 4 December 2001 referred to by her Honour at [26] of Branson No 3.
42 We have looked at the transcript of the argument which took place before Branson J on 31 July 2008 concerning Mr Pantzer's application for leave to reopen. The transcript of that argument also makes very clear that the materials which Mr Pantzer was seeking to tender before her Honour were those described in paragraph 3 of Mr Creais' affidavit sworn on sworn on 4 June 2008 which, of course, included the 25 January 2002 letter.
43 Although Mr Pantzer had sought leave to reopen before Branson J in order to tender three items of evidence, by the time of the hearing of his Cross-Appeal, he had confined himself to challenging her Honour's decision in respect of one document only - the 25 January 2002 letter. He did not press the tender of the other materials.
44 Counsel who appeared for Dr Wenkart before Branson J on 31 July 2008 opposed Mr Pantzer's application for leave to reopen. When Counsel who appeared for Mr Pantzer on that occasion sought to read the affidavit of Mr Creais, Counsel appearing for Dr Wenkart objected to the tender of the documents which were exhibited to that affidavit. Her Honour admitted the material for the purpose of identifying the evidence which would be tendered were she minded to grant to Mr Pantzer leave to reopen and only for that purpose. .
45 It is apparent from the exchanges which took place between her Honour and Counsel on 31 July 2008 that (rightly or wrongly) her Honour regarded Mr Pantzer's application for leave to reopen as an attempt to circumvent the orders made by Lindgren J on 21 October 2003 (as to which see [89]-[91] of the principal judgment).
46 Her Honour dismissed Mr Pantzer's application for leave to reopen because she concluded (incorrectly as we have found) that the proceeding below had been conducted by the parties on the basis of an agreement between them that all of the Bills of Costs rendered by Cutler Hughes & Harris to Mr Pantzer in respect of Dr Wenkart's bankruptcy would be taxed, irrespective of when they were rendered. Her Honour saw Mr Pantzer's reopening application as an attempt to reinterpret the orders made by Lindgren J, an attempt which she regarded as impermissible.
47 There is nothing in the materials before this Court which form part of the appeal papers in the Appeal and the Cross-Appeals which suggests that Dr Wenkart opposed Mr Pantzer's reopening application before Branson J and the tender of the 25 January 2002 letter on the ground that Dr Wenkart would suffer irretrievable prejudice or, indeed, any prejudice if the letter were admitted into evidence before her Honour. Her Honour did not record in Branson No 3 that such a submission had been made to her and we have seen no other evidence that such a submission was made to her. The grounds of opposition advanced by Dr Wenkart before her Honour are those which her Honour recorded in Branson No 3.
48 We are not satisfied, therefore, that Dr Wenkart made submissions to her Honour that the tender of the 25 January 2002 letter would cause him irretrievable prejudice.
49 It follows, therefore, that we are not satisfied that the submissions to the effect that Dr Wenkart would suffer prejudice if the 25 January 2002 letter is admitted into evidence now being advanced to the Full Court were ever made below.
50 Dr Wenkart broke up his Cross-Appeal Reply Submissions into three sections, sections A, B and C. Sections B and C are not presently relevant. Somewhat confusingly, Dr Wenkart addressed Section A under four sub-headings called "Questions". These are Questions A, B, C and D.
51 Section A is headed: "The Cutler Hughes & Harris taxation issue". Question A within Section A is headed: "Had all CHH work in fact been taxed?".
52 Senior Counsel for Dr Wenkart made clear at the hearing before us that Question A in Section A, as formulated by him, contained those submissions which were intended to be put in support of Dr Wenkart's proposed Notice of Contention. Senior Counsel did not suggest anywhere in his submissions to this Full Court that the submissions which he made under that sub-heading related to any other part of the Appeal or the Cross-Appeals. The submissions which Dr Wenkart made directed to Question A in Section A are set out in paragraphs 4-14 of his Cross-Appeal Reply Submissions. Because Dr Wenkart did not press his application for leave to file his foreshadowed Notice of Contention, Senior Counsel for Dr Wenkart requested the Court to "strike out" and ignore paragraphs 4-14 of his Cross-Appeal Reply Submissions (T 4 lines 4-9). We did so.
53 Question B in Section A is headed: "Did Mr Pantzer have an entitlement to refuse taxation". Paragraphs 15-17 of Dr Wenkart's Cross-Appeal Reply Submissions addressed this Question. Those submissions are not presently relevant.
54 Question C in Section A is headed: "Did Branson J's discretion on the procedural question miscarry?". Paragraphs 18-24 address this Question.
55 It is in this last group of paragraphs that Dr Wenkart's submissions concerning Branson J's decision to refuse leave to Mr Pantzer to reopen are made. We set out those paragraphs in full (omitting footnotes):
18. It is submitted that, in any event, Branson J's discretion did not miscarry when her Honour came to dismiss Mr Pantzer's application to re-open.
19. The issue was one for the exercise of discretion by her Honour and hence one to which House v The King principles apply. Further, it was a question concerning procedure, in relation to which an appellate court will exercise particular caution. Not only must there be an error of principle, but the decision appealed from must work a substantial injustice to one of the parties.
20. The letter dated 25 January 2002 (referred to at paragraph 13 of Mr Pantzer's Submissions) was not sought to be put to Branson J. No transcript reference is provided to suggest that it was. It should not be received by this Court on appeal.
21. Mr Pantzer's attempt to re-open was accompanied by an affidavit of Mr Pantzer's solicitor, Mr Creais, which was said by Counsel to be the material which Mr Pantzer wished to read if given leave to re-open. That material clearly overlapped with the work which was taxed by Ms Sexton. So much was made clear in the course of submission. Mr Creais' affidavit exhibited draft invoices in relation to work which had unambiguously been the subject of Ms Sexton's very taxation. They were not signed and had a date different from the copy of the invoice (to the extent to which that invoice was exhibited in WPEX 1). In many cases, the summary total did not match the corresponding invoice. The costs agreement had not been put into evidence. Each invoice was not marked as a "tax invoice". There was no invoice numbers. Her Honour was invited to compare the very different invoices and narrations issued by Cutler Hughes and Harris which were in evidence: for example, at Pt B CRI, Tab 41, 119-200.
22. More significantly, it was not proved that the bills in question were "enclosed" with the letter dated 16 January 2002. No one came forward to prove that assertion, and her Honour did not accept Mr Creais' affidavit as proof of that fact. During the hearing in 2005, it was never put to any witness that this was the case. There was nothing before the Court to support any such inference.
23. In disposing of Mr Pantzer's application, Branson J nevertheless considered the evidence to be brought forward. It is submitted that her Honour correctly held that the evidence would not relevantly bear on the issue which was claimed to be relevant. There was no denial of procedural fairness. There is no apparent challenge to that finding in Mr Pantzer's cross-appeal.
24. Unless this Court finds that the decision which her Honour made on the application to reopen was not one which was open to her Honour and, moreover, has in fact worked a substantial injustice to Mr Pantzer, then the remaining question does not arise.
56 The submission made by Dr Wenkart at paragraph 20 of his Cross-Appeal Reply Submissions cannot be sustained. We have no doubt whatsoever that Mr Pantzer applied to Branson J to reopen in order to tender (amongst other things) the 25 January 2002 letter and that her Honour refused him leave to do so. Her Honour's failure accurately to refer to that letter at [26] of her Honour's Reasons for Judgment (Branson No 3) does not alter the fact that Mr Pantzer wanted to tender the 25 January 2002 letter and that her Honour did not permit him to do so.
57 Dr Wenkart did not make any submission in the submissions directed by him to Question C in Section A (paragraphs 18-24) to the effect he would suffer irretrievable prejudice or indeed any prejudice should this Full Court decide to overturn Branson J's decision to refuse leave to Mr Pantzer to reopen and to admit into evidence the 25 January 2002 letter.
58 Question D in Section A of Dr Wenkart's Cross-Appeal Reply Submissions is headed: "Was Mr Pantzer entitled to depart from the conventional position which had applied between the parties in the litigation since October 2003, in any event". The submissions directed to this Question are found in paragraphs 25-29 in Dr Wenkart's Cross-Appeal Reply Submissions.
59 This group of submissions is directed to the findings made by Branson J to the effect that the parties were bound by their conduct of the proceedings below which conduct included an acceptance by all concerned that all fees and disbursements rendered by Cutler Hughes & Harris to Mr Pantzer in respect of Dr Wenkart's bankruptcy would be taxed. As we have already mentioned, this conclusion was erroneous. At the hearing of the Appeal and the Cross-Appeals before us, Dr Wenkart relied upon the contents of paragraphs 25-29 to support his contention that Mr Pantzer was somehow estopped from contending that not all of Cutler Hughes & Harris' fees and disbursements would be taxed. We rejected Dr Wenkart's estoppel arguments at [289]-[290] of the principal judgment. We saw paragraph 29 of his Cross-Appeal Reply Submissions as an attempt by him to demonstrate relevant detriment for the purposes of his estoppel argument.
60 At paragraph 26 of his Cross-Appeal Reply Submissions, Dr Wenkart submitted that Mr Pantzer was bound by the concession made on his behalf by Counsel to Lindgren J on 21 October 2003. He also submitted that Mr Pantzer had been requested to and had agreed to refer all lawyers' charges (including those rendered by Cutler Hughes & Harris) to taxation.
61 At paragraph 27, it was submitted that all of Cutler Hughes & Harris' fees and disbursements had, in fact, been taxed by Ms Sexton.
62 At paragraphs 28 and 29 of Dr Wenkart's Cross-Appeal Reply Submissions, the following submissions were made (footnotes omitted):
28. Mr Pantzer has still not identified precisely those invoices which were not taxed and to which he now claims an entitlement. Further there was, and still is, no explanation at all for the delay between 2003 and 2008 in bringing this assertion forward.
29. Dr Wenkart was prejudiced by this late evidence in any event. If there had been any debate beyond bringing to account the total amount of Ms Sexton's certificate of taxation, then it is likely that it would have been necessary to obtain evidence from members of Cutler Hughes and Harris and, possibly, the expert evidence of a costs assessor. Further, and importantly, if it had been known that Mr Pantzer asserted an entitlement to a substantial additional sum for CHH, then Dr Wenkart may well have formed a different view about whether any debt was due to Mr Pantzer in the course of that five years of litigation between 2003 and 2008. In the face of such prejudice, and with no explanation for the delay, her Honour was correct in holding Mr Pantzer to the position he had ado-ted for so many years.
63 The first sentence of paragraph 29 of Dr Wenkart's Cross-Appeal Reply Submissions refers to "…this late evidence…". In paragraph 28, there is mention of Cutler Hughes & Harris' invoices. There is no reference at all in paragraphs 25 to 29 to the 25 January 2002 letter. It is not at all clear to us what evidence was sought to be brought to mind by Dr Wenkart's use of the expression "…this late evidence…" in the first sentence of paragraph 29. Had he obtained leave to reopen from Branson J, Mr Pantzer would have tendered three specific items evidence: Mr Holden's Supreme Court affidavit, a bundle of Cutler Hughes & Harris invoices and the 25 January 2002 letter.
64 Although the reference to "late evidence" in paragraph 29 is, at the very least, ambiguous, it seems to us that it was not intended to be a reference to the 25 January 2002 letter. We say this because, according to Dr Wenkart, that letter had not been sought to be tendered before Branson J at all (as to which see paragraph 20 of Dr Wenkart's Cross-Appeal Reply Submissions). If, according to Dr Wenkart, the letter had not been the subject of Mr Pantzer's reopening application at all, then it could not have been encompassed within his reference to "late evidence" in paragraph 29. We think that the reference to "late evidence" in that paragraph is probably a reference to Cutler Hughes & Harris' invoices although, as we have said, the matter is far from clear.
65 In any event, Dr Wenkart is now seeking to re-agitate matters which have been concluded against him in the principal judgment.
66 For example, in support of his current Interlocutory Application, Dr Wenkart relies upon the subject matter of paragraph 19(e) of the Defence which he filed in answer to Mr Pantzer's Points of Claim filed on 17 May 2004. At [96]-[105] of the principal judgment, we addressed the significance of that pleading.
67 Ultimately, of course, all of the facts and matters traversed in [1]-[241], fed into our consideration of the issues in the Appeal and the Cross-Appeals which commenced at [242].
68 At [256]-[293] of the principal judgment, we set out our findings and conclusions in relation to Issue 1 (No Debt to Support an Order for the Appointment of a Trustee for Sale).
69 In particular, at [266]-[272] of the principal judgment, we said:
[266] The trustee had remunerated himself and paid legal fees to CHH and to Counsel totalling $504,674.11 in the period up to 19 December 2000. The largest components of this amount are set out at [30] above.
[267] Towards the end of December 2000, the amount of total receipts, details of payments made by the trustee and the quantum of surplus funds held by the trustee were conveyed to Dr Wenkart and to Throvena, Hapday and MHC.
[268] Neither Dr Wenkart nor any of his creditors requested the trustee at any time in 1999 or 2000 to require CHH to tax its costs pursuant to s 167 of the Bankruptcy Act nor, in that period, did Dr Wenkart or any of his creditors require the trustee to tax his remuneration.
[269] In the last few months of 2001 and in the early part of 2002, CHH and Hunt & Hunt were engaged in correspondence which traversed in detail the unresolved claims then being advanced by the trustee for remuneration and payment of expenses. The facts concerning these communications are set out in detail at [38]-[46] above. They may be summarised as follows:
(a) As at 4 December 2001, the trustee was claiming unpaid remuneration of $183,875.11 and expenses of $247,103.62 with estimated future remuneration and expenses up to the date of the annulment meeting of approximately $11,600. It is quite clear that the figures referred to in CHH's letter dated 4 December 2001 related to work done up to 30 November 2001 which had not yet been paid for. All relevant parties well appreciated as at that date that, by the end of 2000, the trustee had paid out in excess of $500,000.
(b) As at 25 January 2002, the trustee had indicated a willingness to accept $105,000 on account of unpaid remuneration for the period up to 31 December 2000 and a further $105,000 on account of CHH's unpaid fees and disbursements incurred by him up to 31 December 2000. In respect of work referable to the period from 1 January 2001 to 25 January 2002, the trustee claimed $75,000 plus GST and realisation charges by way of remuneration and a further sum of approximately $155,000 on account of expenses payable to CHH.
[270] The correspondence between CHH and Hunt & Hunt in late 2001 and early 2002 makes perfectly clear that, at no time up to late January 2002, had either Dr Wenkart or his creditors required the trustee to tax any of his claimed remuneration (whether paid or unpaid) or requested the trustee to require CHH to tax any of their fees and disbursements (whether paid or unpaid).
[271] The events leading up to the annulment meeting are addressed in detail at [47]-[57] above.
[272] As at the annulment date, the trustee had propounded a claim for remuneration which was then outstanding totalling $220,406.07 and a claim for payment of expenses (CHH's legal fees and disbursements) of $337,301.72 (including GST).
70 Then, at [279]-[292], we went on to say:
[279] In their letter dated 24 April 2002 to Sally Nash & Co, Hunt & Hunt requested the trustee to require CHH to tax their costs and also attempted to compel the trustee to tax his own remuneration. As we have already noted, by that date, Dr Wenkart and his creditors had lost the right to compel the trustee to tax his claim for remuneration. Of course, they had no right to compel the trustee to require CHH to tax its fees and disbursements. They could only request the trustee to exercise his discretion under s 167(1) of the Bankruptcy Act.
[280] The trustee never accepted that he was obliged to require CHH to tax its fees and disbursements and did not require CHH to do so prior to 6 August 2002 when the Official Receiver appointed Ms Sexton to tax some of CHH's fees and disbursements. At and after that time, the trustee acquiesced in the taxation of those fees and disbursements claimed by CHH which remained unpaid as at the end of the annulment meeting (after deducting the $105,000 paid on that day on account of CHH's fees and disbursements) being approximately $232,301.72 (including GST) and those fees and disbursements of CHH which had been paid by means of the cheque for $105,000 delivered on that day.
[281] Having paid close attention to what actually occurred, we have no doubt that the "paid" costs which Ms Sexton taxed in her Certificate dated 17 February 2003 related to those claims which were satisfied by the payment of $105,000 made to CHH on 15 March 2002 at the behest of Dr Wenkart and that the amount of unpaid costs taxed by Ms Sexton related to claims for fees and disbursements made by CHH which were unpaid as at 15 March 2002.
[282] Although Ms Sexton's Certificate was issued on 17 February 2003, she nonetheless certified that, as at 15 March 2002, CHH was entitled to $180,435.30 by way of unpaid costs and disbursements.
[283] Therefore, as at 15 March 2002, the trustee was lawfully entitled to:
(a) $98,095.16 on account of his own remuneration which had been earned but not paid as at that date and which was not required to be taxed; and
(b) $163,477.54, being the amount of legal fees and disbursements ultimately certified by Ms Sexton as due to CHH. This figure is arrived at by taking the amount certified by Ms Sexton in respect of unpaid fees and disbursements (viz $180,435.30) and subtracting from that amount the difference between $105,000, being the amount paid to CHH on 15 March 2002, and the amount of paid costs certified by Ms Sexton (viz $88,042.24).
[284] Dr Wenkart did not pay any monies to the trustee between 15 March 2002 and 31 October 2002.
[285] It follows that, as at 31 October 2002, $98,095.16 was due to the trustee on account of his own remuneration and a further sum ultimately quantified at $163,477.54 was due to him on account of CHH's legal fees and disbursements.
[286] Subsequently, of course, further amounts fell due from time to time as discussed at [96]-[110] above.
[287] At 57-58 [80]-[82] of Branson No 2, her Honour placed considerable significance on remarks made by Counsel then appearing for the trustee at a directions hearing before Lindgren J on 21 October 2003. Her Honour relied upon those remarks and other matters in support of a finding that the trustee had agreed to tax all of CHH's fees and disbursements. Her Honour came to that conclusion notwithstanding the fact that she also concluded (correctly) that Ms Sexton had not, in fact, taxed all of CHH's fees and disbursements.
[288] Because we have concluded that, on any view of matters, the amount of $98,095.16 by way of trustee's remuneration was due to the trustee at all times from 15 March 2002 until quite recently, it is strictly speaking not necessary to address the question of whether the trustee had ever agreed to require CHH to tax all of their costs and disbursements. However, in deference to the careful arguments advanced by Senior Counsel for the trustee, we shall address this point, albeit briefly.
[289] The orders made by Lindgren J on 21 October 2003 were made by consent. They are set out at [89] above. In our view, it is quite clear that the agreement which the trustee made which is recorded in par 1 of those orders was an agreement to require third party suppliers, other than CHH, to tax their claims for fees and disbursements. With great respect to Branson J, it is not to the point that Counsel for the trustee may have erroneously conveyed to his Honour that there was some other agreement in place as at 21 October 2003 pursuant to which the trustee had already required CHH to tax all of their fees and disbursements. Lindgren J was not led into making any order which he would not otherwise have made. The order which he made simply reflected the actual agreement between the parties. No actionable estoppel arose in favour of Dr Wenkart based upon the content of the remarks made by Counsel for the trustee to Lindgren J on 21 October 2003 or as a result of the conduct of the parties. There was no clear representation made by or on behalf of the trustee that could conceivably operate as the foundation of an estoppel by representation. There was no evidence that Dr Wenkart interpreted any particular statement made by or on behalf of the trustee as a commitment on the part of the trustee to require CHH to tax all of its fees and disbursements whenever incurred whether paid or not nor is there any evidence that Dr Wenkart acted to his detriment by relying upon such a statement. There was no evidence to support an estoppel by convention.
[290] Nor is it correct to say that the proceedings were thereafter conducted upon the basis that all of the fees and disbursements rendered by CHH would be taxed. This is not what happened and this is not what the parties expected would happen. With great respect to Branson J, we think that her Honour erred when she found that, at all times after 21 October 2003, the proceedings below had been conducted upon the basis that the trustee had agreed to have all of CHH's Bills of Costs taxed (as to which see 56 [77] of Branson No 2). There was no evidence of any such agreement before her Honour. The only matter relied upon by her Honour to support the finding which she made consisted of the somewhat ambiguous (and inaccurate) remarks of Counsel for the trustee made to Lindgren J on 21 October 2003 to which her Honour referred at 56-58 [77]-[82] of Branson No 2. Those remarks did not justify the finding which her Honour made.
[291] The trustee has sought leave before us to reopen in order to tender the letter dated 25 January 2002 which we have extracted at [44] above. For reasons which we shall explain below, we think that the trustee should have that leave.
[292] In respect of Issue 1, we find that both Branson J and Flick J, to the extent that he adopted the conclusions and reasoning of Branson J, erred and that there was no surplus in the hands of the trustee as at 15 March 2002. Rather, the trustee was lawfully entitled to at least $98,095.16 as at that date and remained so entitled continuously up to and including 31 October 2002. In our view, he was also entitled to the additional amount of $163,477.54 on account of CHH's fees and disbursements as ultimately certified by Ms Sexton.
71 Dr Wenkart has not asked us to reconsider any of the findings made or conclusions reached in the principal judgment other than the decision set out at [346] of the principal judgment. It seems to us that, notwithstanding Dr Wenkart's description of the present application as raising a "narrow point", the application, and the submissions made in support of it, constitute an attempt to challenge or, at least, undermine the findings which we made at [266]-[292] of the principal judgment. We are not prepared to allow Dr Wenkart to attack the findings which we made in relation to Issue 1 under the guise of the present reconsideration application.
72 In any event, the prejudice which Dr Wenkart claims he will suffer as a result of the tender of the 25 January 2002 letter is illusory. We have found that he was well aware of all of the relevant details concerning fees and disbursements rendered to Mr Pantzer by Cutler Hughes & Harris (both paid and unpaid) prior to the annulment meeting held on 15 March 2002. He was also well aware that, as at that date, Cutler Hughes & Harris was asserting claims for fees and disbursements which had not yet been rendered to Mr Pantzer even though they related to the period prior to the annulment date. He well appreciated that a significant sum of money had been paid to Cutler Hughes & Harris since the date when the sequestration order was made against his estate and well appreciated that additional significant sums had been rendered and were claimed but remained unpaid as at that date. We have held that Dr Wenkart had no entitlement to compel Mr Pantzer to tax any of the fees and disbursements rendered to Mr Pantzer by Cutler Hughes & Harris up to the date of the annulment meeting (15 March 2002).
73 In any event, given that the full listing of income received and expenses paid by Mr Pantzer in respect of Dr Wenkart's bankrupt estate was in evidence before Branson J (a listing, we pause to observe, the accuracy and completeness of which was never challenged by Dr Wenkart), given that other correspondence passing between Dr Wenkart's lawyers and Mr Pantzer's lawyers in the period from October 2001 to March 2002 was in evidence before her Honour and given that, as we have held, Dr Wenkart had no right to compel Mr Pantzer to tax the Cutler Hughes & Harris bills, in any event, Dr Wenkart would not have been able to do any of the things or take any of the steps which he now says he is unable to do, the unavailability of which is said to constitute prejudice.
74 Dr Wenkart did not make any submission to this Full Court to the effect that he would suffer the prejudice which he now claims he will suffer if the 25 January 2002 letter is tendered in the Appeal and in the Cross-Appeals. Nor are we satisfied that he made any such submission to Branson J at the time that Mr Pantzer sought leave to reopen.
75 For these reasons, we do not accept that we misapprehended the facts or the relevant law or that we failed to address a submission made on behalf of Dr Wenkart which was clearly articulated and which was of substance. We do not propose to reconsider [346] of the principal judgment and will therefore dismiss Dr Wenkart's Interlocutory Application with costs.
I certify that the preceding seventy-five (75)
numbered paragraphs are a true copy of the
Reasons for Judgment herein of the Honourable
Justices Dowsett, McKerracher and Foster.