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

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

Mr Donkin did not provide sufficient evidence of substance for any counter-claim, set-off, or cross-demand under section 40(1)(g) of the Bankruptcy Act 1966. The alleged breach was not demonstrated to have caused losses, and any claims regarding risk management were addressed and determined in the original action. The Court was not satisfied that the claims had a real prospect of success or were incapable of being set up in the prior proceedings. No ground was shown for varying or setting aside the original judgment, nor for going behind the judgment in the bankruptcy proceeding.

Parties
Debtor: Colin John Donkin; Applicant: AGC (Advances) Ltd
Jurisdiction
Australia
Judgment Date
02 November 1994
Procedural Posture
Bankruptcy Application / Judgment on Application
Outcome
application dismissed
Legal Topics
Finality of Judgment, Counter Claim, Set Off or Cross Demand, Breach of Duty in Exercise of Power of Sale, Variation or Setting Aside of Judgment
Bankruptcy Property Law Finality of Judgment Counter Claim, Set Off or Cross Demand Breach of Duty in Exercise of Power of Sale Variation or Setting Aside of Judgment

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Parties

Colin John Donkin

Debtor

AGC (Advances) Ltd

Applicant

Procedural Posture

Bankruptcy Application / Judgment on Application

Legal Issues

  1. 1 Whether the debtor (Mr Donkin) had a counter-claim, set-off or cross-demand as referred to in section 40(1)(g) of the Bankruptcy Act 1966 equal to or exceeding the judgment debt
  2. 2 Whether alleged breaches of duty by the respondent in the exercise of its power of sale constituted a claim sufficient to stay bankruptcy proceedings
  3. 3 Whether the original judgment or order reflected the intention of the Court and could be varied or set aside

Ratio Decidendi

Mr Donkin did not provide sufficient evidence of substance for any counter-claim, set-off, or cross-demand under section 40(1)(g) of the Bankruptcy Act 1966. The alleged breach was not demonstrated to have caused losses, and any claims regarding risk management were addressed and determined in the original action. The Court was not satisfied that the claims had a real prospect of success or were incapable of being set up in the prior proceedings. No ground was shown for varying or setting aside the original judgment, nor for going behind the judgment in the bankruptcy proceeding.

Court Disposition

application dismissed

Orders

  • Application dismissed
  • Applicant (AGC) to pay respondent's (Donkin's) costs of and incidental to the application, to be taxed