Wenkart v Pantzer (No 3) [2010] FCA 1423

Wenkart v Pantzer (No 3) [2010] FCA 1423

Mr Pantzer's entitlement to 90% of his costs was to be assessed on the usual party/party basis because the earlier judgment did not order or contemplate any solicitor/client or indemnity basis. Although a gross sum costs order was desirable to bring the long-running litigation closer to finality and avoid taxation, the evidence addressed solicitor/client taxation rather than party/party taxation and did not provide a sufficiently certain basis for fixing a gross sum without risking injustice to either party. Dr Wenkart's motion had no merit because it sought to re-agitate the prior conclusion that Mr Pantzer was to have 90% of his costs.

Jurisdiction
Australia
Judgment Date
17 December 2010
Procedural Posture
Practice and Procedure Costs / Two Notices of Motion Filed on 23 November 2010, Heard Instanter, Concerning Costs Following Earlier Judgments
Outcome
Both Notices of Motion filed on 23 November 2010 were dismissed; the proceeding was stood over for finalising orders.
Legal Topics
['gross Sum Costs' 'party/party Costs' 'solicitor/client Costs' 'federal Court Rules Order 62 R 4(2)(c)' 'taxation of Costs']
['practice and Procedure' 'costs'] ['gross Sum Costs' 'party/party Costs' 'solicitor/client Costs' 'federal Court Rules Order 62 R 4(2)(c)' 'taxation of Costs']

Case Brief

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Procedural Posture

Practice and Procedure Costs / Two Notices of Motion Filed on 23 November 2010, Heard Instanter, Concerning Costs Following Earlier Judgments

Legal Issues

  1. 1 ["Whether Mr Pantzer's 90% costs entitlement should be taxed on a solicitor/client basis or on a party/party basis." 'Whether the Court should fix costs in a gross sum under Order 62 r 4(2)(c) of the Federal Court Rules.' 'Whether there was a sufficiently certain evidential basis to assess a gross sum for costs.' 'Whether Dr Wenkart should obtain an order that Mr Pantzer pay his costs up to specified dates.']

Ratio Decidendi

Mr Pantzer's entitlement to 90% of his costs was to be assessed on the usual party/party basis because the earlier judgment did not order or contemplate any solicitor/client or indemnity basis. Although a gross sum costs order was desirable to bring the long-running litigation closer to finality and avoid taxation, the evidence addressed solicitor/client taxation rather than party/party taxation and did not provide a sufficiently certain basis for fixing a gross sum without risking injustice to either party. Dr Wenkart's motion had no merit because it sought to re-agitate the prior conclusion that Mr Pantzer was to have 90% of his costs.

Court Disposition

Both Notices of Motion filed on 23 November 2010 were dismissed; the proceeding was stood over for finalising orders.

Orders

  • ['The Notice of Motion as filed by Mr Pantzer on 23 November 2010 is dismissed.' 'The Notice of Motion as filed by Dr Wenkart on 23 November 2010 is dismissed.' 'The proceeding is stood over to 24 December 2010 at 9.30 am with a view to then making orders to finalise this proceeding.']