Wenkart v Pantzer [2013] FCAFC 81

FEDERAL COURT OF AUSTRALIA

Wenkart v Pantzer [2013] FCAFC 81 Citation: Wenkart v Pantzer [2013] FCAFC 81

Appeal from: Wenkart v Pantzer (No 2) [2010] FCA 1408; Wenkart v Pantzer (No 3) [2010] FCA 1423

Parties: THOMAS RICHARD WENKART v WARREN PANTZER – FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART and HAPDAY HOLDINGS PTY LIMITED (ACN 001 185 253); WARREN PANTZER – FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART v THOMAS RICHARD WENKART and HAPDAY HOLDINGS PTY LIMITED (ACN 001 185 253); HAPDAY HOLDINGS PTY LIMITED (ACN 001 185 253) v THOMAS RICHARD WENKART and WARREN PANTZER – FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART

File number: NSD 26 of 2011

Judges: DOWSETT, MCKERRACHER AND FOSTER JJ

Date of judgment: 30 July 2013

Catchwords: BANKRUPTCY – what is the true construction and effect of an agreement made between a former bankrupt and the former trustee of his bankrupt estate during the life of the bankruptcy which agreement was intended to operate only upon the annulment of the bankruptcy whereby the bankrupt promised to pay the former trustee's lawful entitlements to fees and expenses earned and incurred during the bankruptcy and whereby the former bankrupt secured that promise by the grant of an equitable charge over a parcel of residential real estate – whether as at the date of annulment the said equitable charge was operative – whether at the time the former trustee commenced proceedings for the enforcement of the charge he was entitled to do so – whether the former bankrupt is indebted to the former trustee and, if so, in what amount – whether the former trustee is entitled to an order for sale of the charged property and, if so, upon what terms