Donkin, C.J. v A.G.C. (Advances) Ltd

[1991] FCA 480

- L

COURT OF AUSTRALIA )

ICT REG- ) No. G107 of 1989

DIVISIW 1

BETWEEN:  W L I N JOHN DONKIN and

-

Applicants

AND :  B.G.C. (ADVANCES) UMI2EQ

Respondent

GQBm:  Beaumont J.

Q&!u: 9 August 1991

EUL!~: Brisbane

MINUTES OF ORDER

1. Application dismissed.

2.    Costs reserved.

&U:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court
Rules.

b

THE FgDERAL COURT OF AUS-	)
1 ) No. G107 of 1989

BETWEEN :	COLIN JOHN DONKIN and
-
Applicants

AND :  A.G.C. (ADVAN-
Respondent

!x!mM:	Beaumont J.
RX&!B l	9 August 1991

REASONS FOR JUDGMENT (No. 5L

(On quantum of applicants' claim)

In my Reasons for Judgment (No. 4), I found that in March 1986, when the applicants signed the letter of approval and the letter of willingness (27 March 1986), they would probably have proceeded off-shore but with the benefit of a "atop-loss" operating at approximately 10%. The exchange rate AUD/CHF as at 1 April 1986 was 1.3960. The rate at 29 April

1986, the day after the execution of the Finance Facility
Deed, was 1.3379.	The drawn-down was on 2 June 1986 at the

rate of 1.3715. However, by 1 July 1986, the rate was only 1.1954, i.e. a downwards movement in excess of 10%. In the result, on the assumptions to be made in the light of my finding in Reasons (No. 4), the "stop-lossw mechanism would have been triggered by about that time, with the consequence that the off-shore loan would have been "brought backw on- shore.

Acting on that assumption, there is evidence from

Mr. R.S. Jones, chartered accountant, which is not challenged,

to the following effect: (1) The effect of the Mstop-loss" order being triggered approximately one month after draw-down would have been to crystallise a capital loss of AUD 166,000; (2) There should be added to this interest for 29 days (including withholding tax) of AUD 11,900 resulting in the total debt owed by the applicants being AUD 1,678,000 as at 1 July 1986. (3) Next, calculate what the applicants would have owed on a domestic facility with a starting principal of AUD 1,678,000 as follows: (a) allow the applicants credit for the amounts paid on the off-shore loan (including interest and withholding tax) against the interest charged on the domestic facility; (b) assume that the applicants would have borrowed by a bank bill method of accommodation, allowing also a margin of 2.15% on the borrowing.

The result of these calculations is that there would have been owed on the domestic facility as at 5 June 1990 the

sum of AUD 2,243,000, compared with the sum of AUD 1,876,000 owed on the off-shore loan. That is to say, the applicants were better off in the amount of AUD 367,000 by remaining off- shore.

These calculations, given the assumptions made, were not challenged by the applicants.

In the result, in my opinion, the applicants have failed to show that they suffered any actual loss by reason of the negligence of AGC. There being no claim for nominal damages, the appropriate order is that the application be dismissed. I will reserve costs.

I hereby certify that this and the

preceding two (2) pages are a true copy of the Reasons for Judgment of his Honour Mr. Justice Beaumont.

Counsel and Sollcltors	A. Harrlson Q.C. wlth T. S m r s
for Applicants	instructed by Hempenstall O'bnoghue
Counsel and Sollcltors	R. Morrlson Q.C. wlth J.C. Sheahan
for Respondent	lnst~ucted by Feez Ruthnlng