D'Aquino Brothers managing director Rex D'Aquino has been banned from producing and marketing Scotch whisky products.
The businessman has settled a Federal Court action brought by the Scotch Whisky Association (SWA).
The injunctions against D'Aquino - and one of his liquor stores in Orange, NSW, D'Aquino Peisley - prevent him from using the name "Scotch" or the SWA's certification mark; engaging in conduct that is likely to mislead or deceive; and procuring or inducing anyone to do that on his behalf unless he has approval from the SWA.
Lindesay Low, the SWA's deputy director of legal affairs, told ABC News: "D'Aquino Brothers is out of business and never going to make fake Scotch again."
The ABC reported in June that it had seen test results from an international laboratory that showed D'Aquino's The Black Scot lacked the unique chemical compounds that identify a true scotch, despite the label claiming it was a "Product of Scotland".
Horror year for Rex D'Aquino
D’Aquino was also referred to ASIC in June this year, following the collapse of Fernbrew.
D’Aquino placed the Orange-based alcohol manufacturer and wholesaler in administration earlier this year following an $87 million tax debt.
Administrator KordaMentha has advised ASIC to investigate several potential civil and criminal violations of the Corporations Act.
ABC News reported that KordaMentha had concerns that Fernbrew owed substantially more than the $87 million in tax originally estimated.
The Australian Tax Office conducted an audit of Fernbrew and a related company last year and determined Fernbrew had possession or control over a number of taxable goods the second company manufactured, therefore making it liable for the debt.
A report from KordaMentha’s Rahul Goyal and Scott Langdon, lodged with ASIC, said the unpaid duty owing to the ATO was equivalent to two years’ worth of tax, but Fernbrew may have been engaging in the conduct for “at least a period of four years prior to the administration” in January.
“Meaning the unpaid duty owing to the ATO is substantially greater than the presently assessed $87.11 million,” the report said.
“In our opinion, as the unpaid duty was a liability of the company, albeit not recorded or disclosed anywhere in the financial accounts of the company, the company has been insolvent for an extended period of time.”
The administrators said further investigations were needed to determine the precise insolvency date.
The report claimed the company had “unexplained accounting entries” and that there was evidence “the company entered into certain transactions that may constitute a breach of directors’ duties”.
“Ultimately a determination as to whether the director has breached his duties is a matter for the court,” the report noted.
Recovering lost millions
Regarding Fernbrew’s debts, $7.8 million is likely to be returned by the company’s clients, with almost $5.5 million already recovered.
In February, a customer told the Central Western Daily that 600 letters of demand had been sent to potential clients asking them not to pay Fernbrew or the D’Aquino Group, but send money owed directly to the ATO.
More than $4million worth of former D’Aquino Brothers alcohol went under the hammer in April, in an auction hosted by Pickles, which promised the stock “will be sold for a fraction of retail price”.
The haul included a large quantity and variety of craft beer, spirits, pre-mixed beverages, mixers, champagne, and more. Those sales have recovered $1.7 million.
Hunter Wine Services placed in receivership
A second D’Aquino business was recently placed in liquidation, with Hunter Wine Services (HWS) following Fernbrew Pty Ltd into receivership.
Hunter Wine Services was a contract winemaking company located in Muswellbrook in the Upper Hunter Valley, NSW.
HWS produced four million bottles of wine a year, which was exported to 30 countries. It was Australia’s largest exporter of wine to Russia.
The Newcastle Herald reported that HWS was also understood to supply about three million litres of raw ethanol to Fernbrew each year.
More than $4million worth of former D’Aquino Brothers alcohol went under the hammer last month, following Fernbrew being placed in administration due to owing more than $87 million to the Australian Taxation Office.
According to HWS former director and shareholder John Hordern, who was also the company’s chief winemaker, said HWS stopped bottling in September and “closed” in February.
“We were doing a lot of exports and we had a great team, it’s a real shame what has happened,” he said.
The Newcastle Herald noted: “According to Australian Securities and Investments Commission (ASIC) documents, Fernbrew and Hordern’s family company, Anthony Hordern & Sons, owned a half-share in HWS until February 5 this year.
“Five days after Fernbrew was placed in voluntary administration, it bought out the Hordern’s share of HWS for $500,000.
“D’Aquino was the sole director and shareholder of HWS when it collapsed and the sole director of Fernbrew.
“Mr D’Aquino’s elderly mother Zina, and another man, Peter Tuson, are the owners of Fernbrew through a holding company.”
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