Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 5) [2019] FCA 1914

The termination of the Deed of Company Arrangement should be made pursuant to s 445D of the Corporations Act 2001 (Cth), leading to automatic liquidation by operation of s 446AA. The declaration regarding failure to keep financial records should reference the period between April 2009 and November 2017, during which there was non-compliance. It is unnecessary to make an additional order under s 75-42 to set aside the resolution approving the DOCA when termination under s 445D has the automatic effect of liquidation.

Parties: Plaintiff: Adelaide Brighton Cement Limited; First Defendant: Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement); Second Defendant: Dominic Charles Cantone in his capacity as administrator of Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement); Third Defendant: Nicholas David Cooper in his capacity as administrator of Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement); Fourth Defendant: Pelegrino Obbiettivo; Fifth Defendant: Genesio Obbiettivo; Sixth Defendant: Tina Obbiettivo
Jurisdiction: Australia
Judgment Date: 19 November 2019
Procedural Posture: Corporations and Corporate Insolvency / Final Orders After Substantive Judgment
Outcome: Final orders granted: DOCA terminated, liquidators appointed, certain claims dismissed, stay ordered.
Legal Topics: Deed of Company Arrangement, Termination of DOCA, Financial Record Keeping, Liquidation, Appointment of Liquidators, Setting Aside Creditor Resolutions

Corporations Law Insolvency Deed of Company Arrangement Termination of DOCA Financial Record Keeping Liquidation Appointment of Liquidators Setting Aside Creditor Resolutions

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Parties

Adelaide Brighton Cement Limited

Plaintiff

Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement)

First Defendant

Dominic Charles Cantone in his capacity as administrator of Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement)

Second Defendant

Nicholas David Cooper in his capacity as administrator of Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement)

Third Defendant

Pelegrino Obbiettivo

Fourth Defendant

Genesio Obbiettivo

Fifth Defendant

Tina Obbiettivo

Sixth Defendant

Procedural Posture

Corporations and Corporate Insolvency / Final Orders After Substantive Judgment

Legal Issues

1 Whether the Deed of Company Arrangement should be terminated pursuant to s 445D of the Corporations Act 2001 (Cth)
2 Whether the resolution that the first defendant execute a deed of company arrangement should be set aside
3 Whether a declaration regarding compliance with s 286 of the Corporations Act 2001 (Cth) should specify the relevant period

Ratio Decidendi

Court Disposition

Final orders granted: DOCA terminated, liquidators appointed, certain claims dismissed, stay ordered.

Orders

The first defendant is indebted to the plaintiff in the amount of $12,457,472.22.
The first defendant failed to keep written financial records which complied with s 286 of the Corporations Act 2001 (Cth) between April 2009 and November 2017.