Donkin, C.J. v AGC (Advances) Ltd

[1991] FCA 670

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JUDGMENT No. ........ ........ .. 7 ........ ... -..

IN THE FEDERAL COURT OF AUSTRALIA )	No. QG,i15 of 1991
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: COLIN JOHN DONKIN AND HEATHER KAY DONKIN

Applicants

AND: AGC (ADVANCES) LIMITED

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:  PINCUS J.

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DATE OF ORDER:	4 NOVEMBER 1991	, ".
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WHERE MADE:	BRISBANE	f. ,.  !I.;.
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THE COURT ORDERS THAT:	F?'
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1.	The application for interlocutory relief be refused.	L.. ,
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2.	Costs of and incidental to that application be the	Lt..
respondent's costs in the appeal.	I...:, ; ; L :

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

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IN THE FEDE- COURT OF AUSTRALIA No. QG 115 of 1991

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QUEENSLAND DISTRICT REGISTRY 1

GENERAL DIVISION 1

BETWEEN: COLIN JOHN DONKIN AND HEATHER KAY DONKIN

Applicants

AND: AGC (ADVANCES1 LIMITED

Respondent

CORAM: PINCUS J.

PLACE: BRISBANE

m:  4 NOVEMBER 1991

EX TEMPORE REASONS FOR JUDGMENT

In 1986, the applicants agreed with the respondent

to borrow from it $2 million, principally in Swiss francs. A
number of disputes arose, the principal one being that the
applicants alleged the respondent to have been guilty of
misleading conduct inducing the loan agreement. Negligence
was also alleged. The suit in which these allegations were
put forward was recently dismissed by Beaumont J. His Honour'

held that trhe respondent was guilty of negligence in failing

to advise of the existence of a stop loss mechanism relating

to the Swiss franc loan. But it was also held that had the negligent omission. He also ordered an account taken of the amount owed by the applicants to the respondent, which was subsequently fixed at a sum in excess of $3 million.
appropriate advice been given, it would have been acted on in
such a way as, in the events that happened, to cause the
applicants greater loss than they in fact sustained.

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A notice of appeal against the decision of Beaumont 1 L ..

J. has been filed, and the appeal is to be heard fairly soon.	i	:
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The applicants seek an injunction pending the hearing of the	11.;
appeal, to restrain the respondent from exercising its rights
as holder of securities. In particular, the applicants wish	1 ;'F ,~
to have restrained an auction sale of property scheduled for	. .
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Thursday next.
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There is no doubt of the Court's jurisdiction to	1,:"
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issue an injunction to preserve the status quo, pending an

appeal.

The purpose is to ensure that the appeal is not

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futile.

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I have studied the papers further since the	;	,	:	L ..	y
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application was heard on Friday, and have come to the	b..';
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conclusion that no injunction should be granted.	+:
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On 19 June 1990, Spender J. dismissed an application for an injunction made by the applicants, the purpose of which	.-. *%..
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was to pay out (in borrowings from a bank) the greater part of	k.?>
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what the respondent then claimed to be owed. As to the rest,

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the applicants proposed that the respondent take second	,. 7y
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mortgage security. Leave to appeal against that decision was	/ :
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refused, and on 27 August 1990 a receiver was appointed in	r:5
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respect of property over which the respondent held security.	t ':-
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Since the application before Spender J. was refused	1. ."
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in June last year, the applicants have made no further attempt	>! ,. . .
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to restrain the exercise of the respondent's powers as
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mortgagee, until this preseni: application. IA the meantime, of what Mr Donkin sees as its main features, it seems to me likely that the principal points taken will be ones of fact and credit, and I have the impression that no question of law will loom large. Nor does it appear that the judgment of Beaumont J. will be argued to be inconsistent with anything to be found in a document or with any undisputed fact.

as I have explained, their suit has been dismissed by Beaumont

Reading the reasons of Beaumont J., one can see that

the principal ground upon which the suit failed was simply
that his Honour was unable to be satisfied of the accuracy of
the applicants' version of disputed conversations which
occurred in 1986.

It has to be said that appeals brought on such a

foundation do not commonly succeed. It is unusual for an
appellate court to interfere with a trial judge's conclusion

with respect to disputed conversations, in the absence of any

clear indication that the rejected version should have been
accepted.

I must say that Mr Donkin, who proposes to argue the

appeal himself, gives the impression of harbouring a genuine

sense of grievance against the respondent, and also against

his former solicitor. It should be added that M r Donkin has

informed me that he proposes to raise a point about inadequate
discovery on the part of the respondent, but no details of

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that are presently available. It also has to be said,	F ;, .L.;	.	:	.
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however, that if the appeal is successful, then the sale, if	. :.

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one is concluded on Thursday, will not by any means	I:' ~.
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necessarily render the appeal futile. That is, should the
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applicants persuade the Full Court of their right to damages,	- ,
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for example on the ground of misleading conduct, there is no	'I<
reason why damages could not be awarded, nor does it seem	1;
probable that the respondent would be unable to pay any	1; .i p;
damages awarded.	r: ! I
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The real reason why the injunction is sought, as it,	p
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seems to me, is that Mr Donkin is confident of the rightness

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of his cause, and seems to have convinced himself that the	I:,
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Full Court must necessarily share that view of it.	He wishes	:.	,;
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to preserve the property against the day when there is	.L: 3 .,.
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restored to him, unencumbered by any security in favour of the	L:,, l?,.:
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respondent, the property which he regards himself as having
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lost through illegal conduct on the part of the respondent.	...,
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It does not seem to me to be a case iil which it g.

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would be proper or orthodox to grant injunctive relief pending	i.;
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the appeal, particularly in view of the circumstance that	t .
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there was no injunction in force pending the trial.	: ; :
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The application for interlocutory relief will	IT..
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therefore be refused, and the costs of that application will	I -~
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be respondent's costs in the appeal.	? ' , . .

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I certify that the four

preceding pages are a true
copy of the reasons for
judgment herein of his

Honour Mr. Justice Pincus.

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2        ki-t

Associate

Date 4 H O v e ~ b e r 1791