Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 2) [2018] FCA 1003

Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 2) [2018] FCA 1003

It is appropriate to order a variation of the Deed of Company Arrangement under s 447A of the Corporations Act 2001 (Cth), extending the time for directors to pay the $2.5 million into the Deed Fund, without requiring payment into escrow, subject to a monthly interest equivalent payment condition. Formal pleadings are to be required to clarify and manage the issues, ensuring clear identification of the matters for determination, especially given the complex nature and seriousness of the allegations.

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); Third Defendant: Nicholas David Cooper (in his capacity as Administrator of Concrete Supply Pty Ltd); Fourth Defendant: Pelegrino Obbiettivo; Fifth Defendant: Genesio Obbiettivo; Sixth Defendant: Tina Obbiettivo
Jurisdiction
Australia
Judgment Date
03 July 2018
Procedural Posture
Corporations Variation of Deed of Company Arrangement and Procedural Order / Interlocutory Applications Prior to Trial
Outcome
Applications granted in principle, with parties to be heard on specific terms of orders in light of reasons given.
Legal Topics
Deed of Company Arrangement Variation, Role of Court Under S 447 a of Corporations Act, Pleadings and Case Management
Corporations Practice and Procedure Deed of Company Arrangement Variation Role of Court Under S 447 a of Corporations Act Pleadings and Case Management

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 18 Party arguments 2 Amounts and remedies 1
Sign in to unlock

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)

Second Defendant

Nicholas David Cooper (in his capacity as Administrator of Concrete Supply Pty Ltd)

Third Defendant

Pelegrino Obbiettivo

Fourth Defendant

Genesio Obbiettivo

Fifth Defendant

Tina Obbiettivo

Sixth Defendant

Procedural Posture

Corporations Variation of Deed of Company Arrangement and Procedural Order / Interlocutory Applications Prior to Trial

Legal Issues

  1. 1 Whether the Court should vary the Deed of Company Arrangement under s 447A of the Corporations Act 2001 (Cth) to extend time for payment by directors into the Deed Fund
  2. 2 Whether the proceeding should proceed on formal pleadings (Statement of Claim and Defences)

Ratio Decidendi

It is appropriate to order a variation of the Deed of Company Arrangement under s 447A of the Corporations Act 2001 (Cth), extending the time for directors to pay the $2.5 million into the Deed Fund, without requiring payment into escrow, subject to a monthly interest equivalent payment condition. Formal pleadings are to be required to clarify and manage the issues, ensuring clear identification of the matters for determination, especially given the complex nature and seriousness of the allegations.

Court Disposition

Applications granted in principle, with parties to be heard on specific terms of orders in light of reasons given.

Orders

  • The parties be heard as to appropriate orders in light of the reasons regarding the application to vary the DOCA.
  • The parties be heard as to appropriate orders concerning the application for proceeding on pleadings, in light of the reasons.