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

JUDGMENT NO. suc S53. 77 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)

di 7 ul

Vogweil 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 & Ors v, Papanayiotoy & Anor [1977] 2 N.S.W.LR. 944 Wren v. Mahony (1971) 126 CLR 212

Simon v, O'Gorman Pty Lid (1979) 27 ALR 619

Re Fraser; Ex parte Central Bank of London [1892] 2 QB 633

Colin John Donki vy AGC (Advances) Ltd QN 443 of 1994

14 DEC 1994

AUSTRALIA PRINCIPAL

UPTC STAT U 44 4 RE: COLIN JOHN DONKIN Debtor EX PARTE: AGC (ADVANCES) LTD Applicant JUDGE MAKING ORDER: Kiefel J DATE OF ORDER: 2 November 1994 WHERE MADE: Brisbane 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 1s dealt with in Order 36 of the

Federal Court Rules.

VISIO BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND 44 4 RE: COLIN JOHN DONKIN Debtor EX PARTE: AGC (ADVANCES) LTD Applicant CORAM: Kiefel J PLACE: Brisbane DATE: 2 November 1994

REASONS FOR JUDGMENT

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