Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) v Adelaide Brighton Cement Limited

In this case, Concrete Supply Pty Ltd, subject to a Deed of Company Arrangement, sought a stay and an extension of time to make a payment under the deed, pending the hearing and determination of an appeal. The application was brought against Adelaide Brighton Cement Limited. The Federal Court was required to determine whether the Appellant had grounds to appeal the decision of the primary Judge, and whether the claimed errors had reasonable prospects of success. Additionally, the Court had to consider the utility of the stay and the extension of time, the prejudice to the Appellant, and the balance of convenience.

The Court found that several of the grounds of appeal could not be regarded as reasonably arguable. The Court was not convinced that the alleged errors in the Judge's findings had reasonable prospects of success. The Court was particularly unpersuaded by the contention that the Administrators should have sought an extension of time to complete their investigations, as the Judge had concluded that the administration of Concrete Supply was exceptional. The Court concluded that there was no reasonable prospect of success on appeal, and therefore denied the application for a stay and an extension of time. The Court found that there was no present willingness by ANZ Bank to advance the required facilities, even if the Deed of Company Arrangement was ultimately set aside.

The Court ordered that the Appellant's Interlocutory Application filed on 11 December 2019 seeking a stay of Orders 3 and 4 of the orders made by Justice Besanko on 19 November 2019 and an extension of the time in which the payment required by clause 8(c) of the Deed of Company Arrangement is to be made was refused. The Appellant was to pay the Respondents’ costs of and incidental to the Interlocutory Application to be taxed in default of agreement.