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[2024] FCA 1351
Federal Court of Australia
2024-11-22
Burley J
Original judgment source is linked above.
BURLEY J: 1 The plaintiffs are joint and several liquidators of Aoji Enrolment Centre of International Education Limited, a company incorporated in the Hong Kong Special Administrative Region. On 26 June 2024 they commenced these proceedings, seeking orders for the issue of a summons that Li Ping Zong, a former director of Aoji based in Australia, attend the Court to be examined about, and produce documents relevant to, the examinable affairs of Aoji. The examination was originally scheduled to take place in Sydney on 23 and 24 September 2024 but has been adjourned to 26 and 27 February 2025. 2 The plaintiffs now seek leave pursuant to of r 10.44 of the Federal Court Rules 2011 (Cth) (FCR) orders permitting them to serve a summons for the production of documents to the Standard Chartered Bank (Hong Kong) Limited (Hong Kong Business Registration Number 3414 4373) outside the jurisdiction, in Hong Kong. The documents are said to be relevant to the examination. Given the date of the examination, and potential delays in the process of obtaining production, there is some urgency in the application, which proceeded ex parte on the papers. 3 On 2 November 2022, this Court in NSD700/2022 made orders: (a) recognising proceedings in the High Court of Hong Kong as foreign proceedings pursuant to Art 17(1) of the Model Law on Cross Border Insolvency of the United Nations Commission on International Trade Law, as set out in Schedule 1 to the Cross Border Insolvency Act 2008 (Cth) (Hong Kong proceedings); (b) recognising the appointment of the plaintiffs as provisional joint and several liquidators of Aoji by the Hong Kong proceedings; (c) recognising the Hong Kong proceedings as a foreign main proceeding pursuant to s 6 of the Act and Art 17(2) of the Model Law; (d) entrusting the administration, realisation and distribution of Aoji's assets located in Australia to the plaintiffs pursuant to Art 21(1)(e) of the Model Law; and (e) making available to the plaintiffs all powers available to a liquidator of a corporation appointed under the provisions of the Corporations Act 2001 (Cth) pursuant to Art 21(1)(g) of the Model Law. 4 On 14 October 2024 a Registrar of the Court made orders in the form of the orders now sought to be served, however, as leave to serve a document outside the jurisdiction does not fall within the powers delegated to a Registrar (see Schedule 2 to the FCR), leave is required from a Judge of the Court 5 For the following reasons I am satisfied that it is appropriate to make the orders sought. 6 First, it is apparent from the affidavit of Mr Dickson Luo that the documents are relevant to the liquidation of Aoji and to the examination of Mr Zong. 7 Secondly, the order for production is to facilitate the enquiries of the plaintiffs and in a form that is suitable to meet that purpose. 8 Thirdly, Hong Kong is a member of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (that is, the Hague Convention), thereby dispelling any question that, by reasons of international comity, it may not be appropriate to grant the leave sought; Clifton (Liquidator), in the matter of Solar Shop Australia Pty Ltd (In Liquidation) [2014] FCA 891 at [11]-[12]. This point is reinforced in the present case because the orders for production sought are directed to facilitating and giving aid to orders made by a court in Hong Kong in relation to the winding up of Aoji, a Hong Kong company. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.