Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 4)

This case involved a dispute between Adelaide Brighton Cement Limited (ABCL) and Concrete Supply Pty Ltd (Concrete Supply), with the latter being subject to a Deed of Company Arrangement (DOCA). ABCL sought to recover monies owed for cement supplied over approximately nine years, alleging that Concrete Supply was entitled to a discount or rebate but failed to provide one. The case also involved claims of misleading or deceptive conduct, breach of trust, and inadequate record-keeping. Additionally, ABCL sought to set aside the DOCA and terminate the resolution passed by the second defendant on the exercise of his casting vote.

The court was required to determine whether ABCL agreed to provide Concrete Supply with a discount or rebate, and if Concrete Supply was estopped from denying such an agreement. The court also needed to decide if Concrete Supply engaged in misleading or deceptive conduct, whether ABCL was aware of the true level of indebtedness, and if Concrete Supply held cement on trust for ABCL. Further, the court examined whether Concrete Supply failed to maintain adequate books and records, and if the DOCA should be set aside due to inadequate investigations or false statements. Finally, the court considered whether the resolution passed on the casting vote should be set aside and if it was in the public interest to appoint a liquidator to Concrete Supply.

The court found that Concrete Supply was indebted to ABCL in the amount of $12,457,472.22, but dismissed the claims of misleading or deceptive conduct and breach of trust or fiduciary duty. The court also found that Concrete Supply failed to keep written financial records which complied with the Corporations Act. The court determined that the DOCA should be terminated and the resolution passed on the casting vote should be set aside. The court exercised its discretion to terminate the DOCA, considering it was in the public interest to do so.

The court made an order for ABCL to file and serve draft minutes of order reflecting the conclusions expressed in the reasons and containing any other orders it seeks. The proceeding was listed for the making of final orders on a date to be fixed.