Donkin, C.J. v AGC (Advances) Ltd - [1994] FCA 843

COLIN JOHN DONKIN v. AGC (ADVANCES) LTD
No. QN 443 of 1994
FED No. 843/94
Number of pages - 6
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
KIEFEL J

CATCHWORDS

Bankruptcy - finality of judgment - whether debtor had a counter-claim, set-off or cross-demand of a kind referred to in section 40(1)(g) - alleged breach of duty by respondent in exercise of its power of sale - whether order reflected intention of the Court.

Bankruptcy Act 1966 - section 40(1)(g) Property Law Act (Qld) - section 85(1)

Order 35 rule 7(2)(e) Federal Court Rules

Vogwell v. Vogwell (1939) 11 A.B.C. 83
Re Brink; Ex parte Commercial Banking Co. of Sydney Ltd (1980) 30 ALR 433
Ebert v. The Union Trustee Co of Australia Ltd (1960) 104 CLR 346
Gikas and Ors v. Papanayiotou and Anor (1977) 2 N.S.W.L.R. 944
Wren v. Mahony (1971) 126 CLR 212
Simon v. O'Gorman Pty Ltd (1979) 27 ALR 619
Re Fraser; Ex parte Central Bank of London (1892) 2 QB 633

HEARING

BRISBANE, 19 OCTOBER 1994
#DATE 2:11:1994

Counsel for the applicant: Mr A. Vasta QC
instructed by: Barker and Associates

Counsel for the respondent: Mr P. Keane QC and Mr J. Sheahan and

Mr M. Eliades

instructed by: Clayton Utz

ORDER

The Court orders that:
1. The application be dismissed.
2. The applicant pay the respondent's costs of and incidental to the

application to be taxed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the

Federal Court Rules.

JUDGE1

KIEFEL J On 24 December 1991, judgment for $3,800,640.84 was entered for the respondent against Mr Donkin and his wife. The judgment followed the determination of Mr and Mrs Donkin's claims concerning the extent of advices given by the respondent at the time a loan was taken by them in foreign currency and the steps thereafter taken, or not taken, by the respondent to reduce the risk to which they were exposed and of a claim by the respondent for monies due under the loan agreement. A bankruptcy notice has issued against Mr Donkin, in which the sum of $1,272,844.88 is said to be due under the judgment, the net proceeds of the sale of some assets having been applied. Drummond J has (on 24.8.94) determined the question as to whether the affidavits filed by Mr Donkin within the time required by s. 41(7) were sufficient to effect the extension of time there referred to. No issue was taken on this application to receipt of further material filed by the applicant.

Mr Donkin seeks declarations that he has a counter-claim, set off or cross-demand as referred to in s. 40(1)(g) Bankruptcy Act 1966 equal to or exceeding the amount of the judgment debt and being a counter-claim, set off or cross-demand that he could not have set up in the action in which the judgment was obtained. The respondent has foreshadowed a motion to strike out the application.
The applicant's claims are founded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Donkin, C.J. v AGC (Advances) Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1994] FCA 843
Decision Date: 02 NOVEMBER 1994

CaseChat Overview and Summary

The case of Donkin, C.J. v AGC (Advances) Ltd involved a dispute concerning bankruptcy and the finality of a judgment. The applicant, Donkin, sought to challenge an earlier bankruptcy judgment on the grounds that there were counter-claims or set-offs that were not considered by the court at the time of the judgment. The respondent, AGC (Advances) Ltd, argued that the application should be dismissed as the applicant had no valid grounds to challenge the finality of the bankruptcy judgment.

The central legal issues before the court were whether the applicant had a counter-claim, set-off or cross-demand of a kind referred to in section 40(1)(g) and whether the order made by the court reflected its true intention. The applicant argued that the respondent had breached a duty in exercising its power of sale, which should allow for the reopening of the bankruptcy judgment. The respondent, on the other hand, contended that the applicant's claims were not valid and should not result in the reopening of the judgment.

The court found that the applicant's claims were not valid and did not fall within the scope of section 40(1)(g). The court also found that the order made reflected its true intention and that the application should be dismissed. The court held that the applicant had not demonstrated any valid grounds to challenge the finality of the bankruptcy judgment and that the respondent had not breached any duty in exercising its power of sale. The court further held that the applicant should pay the respondent's costs of and incidental to the application to be taxed.

In conclusion, the court dismissed the application and ordered the applicant to pay the respondent's costs of and incidental to the application. The court found that the applicant's claims were not valid and did not justify reopening the bankruptcy judgment. The court also held that the order made reflected its true intention and that there was no breach of duty by the respondent in exercising its power of sale. The final orders were made in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

The Court orders that:

1. The application be dismissed.

2. The applicant pay the respondent's costs of and incidental to the

application to be taxed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the

Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.