Board of Directors of Rizzo-Bottiglieri-De Carlini Armatori SpA v Rizzo-Bottiglieri-De Carlini Armatori SpA

The Board of Directors of Rizzo-Bottiglieri-De Carlini Armatori SpA sought to enforce cross-border insolvency orders in Australia against Rizzo-Bottiglieri-De Carlini Armatori SpA, a shipping company. The dispute involved the termination of a foreign proceeding in Italy and the effect on Australian court orders made under the Model Law on Cross-Border Insolvency. The legal issues included whether the Australian court should terminate the stay orders in light of the Italian court's termination of the concordato preventivo proceeding and whether the Australian court should allow the plaintiff to amend the existing originating process for recognition of a new foreign proceeding.

The court found that the Italian court's dismissal of the first concordato preventivo proceeding terminated the foreign representative's appointment, thus negating the basis for the Australian court's stay orders. The court also concluded that the plaintiff should not be permitted to amend the existing originating process to recognise a new foreign proceeding. Instead, the existing proceeding should be discontinued and a new proceeding commenced. The court emphasised the importance of the foreign representative informing the Australian court of any substantial changes in the status of the recognised foreign proceeding or the status of the foreign representative's appointment, as required by Art 18 of the Model Law. The court further determined that the stay orders should not require prospective plaintiffs to give notice of their intention to arrest a vessel to the foreign representative, but rather, notice of the application for the issue of a warrant for arrest should be made ex parte to a judge.

In summary, the Australian court terminated the stay orders and discontinued the existing proceeding, allowing the plaintiff to commence a new proceeding for recognition of the second concordato preventivo. The court also directed the plaintiff to publish notices of the orders and to send notices to Australian creditors of the defendant.