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Finstro Securities Pty Ltd v Tradecorp Leasing Ltd [2025] NSWSC 1270 | Case summary | Zoe

NSWNSWSC

Finstro Securities Pty Ltd v Tradecorp Leasing Ltd

[2025] NSWSC 1270

Supreme Court of NSW|2025-10-29|Before: Peden J

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General information, not legal advice.

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2025-10-29

Before

Peden J

Catchwords

PRIVATE INTERNATIONAL LAW – service – leave to proceed under r
11.8AA of UCPR – service in Hong Kong and the British
Virgin
Islands – conflict between Part 11 and Part 11A of the UCPR –

Source

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Catchwords

PRIVATE INTERNATIONAL LAW – service – leave to proceed under r11.8AA of UCPR – service in Hong Kong and the BritishVirginIslands – conflict between Part 11 and Part 11A of the UCPR –whether the Hague Service Convention is an exclusivemechanism for service– exclusive jurisdiction clause – necessary or proper party –not a clearly inappropriateforum – leave granted CIVILPROCEDURE – default judgment – claim for debt under r 16.6 of UCPR– judgment awarded

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Finstro Securities Pty Ltd v Tradecorp Leasing Ltd [2025] NSWSC 1270

Hearing dates: 10 October 2025, further submissions 14 October 2025

Date of orders: 29 October 2025

Decision date: 29 October 2025

Jurisdiction: Equity - Commercial List

Before: Peden J

Finstro submitted the Summons and Commercial List Statement was served by express international post:
On Tradecorp Leasing in Hong Kong on 2 May 2025.
On Tradecorp Global in the British Virgin Islands on 17 June 2025.
Finstro submitted this was service in accordance with Part 11 of the UCPR, relying particularly on r 11.8AC for the proposition that a document to be served overseas “need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected”. Thus, Finstro submitted that, so long as it served the defendants in accordance with the law of the country in which service occurred, it is not necessary to also comply with the approach found in Part 11A of the UCPR relating to service under the Hague Service Convention, which is relevant in Hong Kong and Britain.
The Hague Service Convention was extended by the United Kingdom to the British Virgin Islands and Hong Kong with effect from 19 July 1970. By a note dated 10 June 1997, the People’s Republic of China declared that the Convention would apply to the Hong Kong Special Administrative Region with effect from 1 July 1997 and that the Government of the People’s Republic of China would assume responsibility for the international rights and obligations arising from the application of the Convention to Hong Kong: Gloucester (Sub-Holdings 1) Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1419 at [42] (White J, as his Honour then was). Contrary to its own declaration, the People’s Republic of China maintained the United Kingdom’s declaration in relation to Hong Kong which does not object to service pursuant to Article 10(a) of the Convention.
In its later submissions, Finstro stated “proceedings can be validly served in countries that are signatories” to the Hague Service Convention “by following the process in Part 11 of the UCPR, as opposed to the process in Part 11A”.
The primary issue is whether service under Part 11A (which incorporates the Hague Service Convention) operates to exhaustively and exclusively cover service, where the State of destination is a party to the Hague Service Convention, such that the operation of Part 11 of the UCPR is displaced. There are several reasons why I do not consider it is so.
First, Part 11A expressly contemplates the interaction with other aspects of the UCPR equally capable of applying in States, that are parties to the Hague Service Convention. Rule 11A.2 provides that Part 11A “prevails to the extent of any inconsistency with any other provision of these rules”. The choice of the term “inconsistency” rather than “exclusion” ensures that only where Part 11A and relevantly Part 11 cannot operate concurrently, the former governs. However, this drafting also presupposes that, where the two Parts are capable of harmonious application, each continues to apply. This reading is confirmed by the permissive “may” contained in r 11A.4(1), which suggests that “the invocation of the formal mechanism under Arts 3-6 of the Hague Convention is discretionary”: Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218 at [20] (Gordon J) (Yellow Page Marketing).
Secondly, Part 11 also contemplates application in accordance with the Hague Service Convention. Rule 11.2 states that Part 11 “does not require the leave of the Supreme Court for any service or other thing that may be effected or done under ... the Hague Convention or Part 11A” (emphasis added). Moreover, r 11.4(2) expressly contemplates that “this rule extends to originating process to be served outside Australia in accordance with the Hague Convention”. Both rules assume that Part 11 and the Hague Service Convention may operate together, not that the latter (as incorporated in Part 11A) has displaced the former.
A further question therefore arises as to whether Part 11 is consistent with service under the Hague Service Convention in accordance with r 11A.2, as statute is to be interpreted harmoniously with Australia’s international obligations and with the comity of nations: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at 234.
Rule 11.8AC provides that a “document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected”. The phrase “law of the country” cannot sensibly be confined to the municipal law of the State of destination, but must include the international obligations binding upon it including, where applicable, the Hague Service Convention. This was confirmed by Ball J (as his Honour then was) in Independent Liquor & Gaming Authority v Melco Resorts & Entertainment Limited [2022] NSWSC 294 at [53] in stating that “r 11.8AC is one of the rules that implements Australia’s obligations under the Hague Convention on Service”.
As noted above, the Hague Service Convention prescribes a formal mechanism in Articles 3-6, which I accept is itself not an “exclusive” mechanism. This is because the Convention provides for “alternative means of service” which are “by no means a subordinate or subsidiary means of service to that specified” in Articles 3-6: Rio Tinto Shared Services Pty Ltd v English Datasystems LLC (2021) 65 VR 25 at [93] (Lyons J); Yellow Page Marketing at [20]. This should not be read as suggesting that compliance or consistency with the Hague Service Convention is optional or “facultative, not mandatory”: cf Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986 at [30]. The Hague Service Convention should instead be given full effect, because it would be “surprising” if rules such as the UCPR sought to “make more restrictive the manner in which a writ may effectively be served outside Australia than provided for in the Hague Convention itself”: Jabiru Satellite Ltd v Societe Generale [2021] VSC 544 at [46] (Delany J).
Several examples of alternate means of service feature in the Hague Service Convention, two of which are of note here.
Article 10(a) maintains “the freedom to send judicial documents, by postal channels, directly to persons abroad” which has been understood by the US Supreme Court and Australian courts as extending to service by judicial process: Water Splash, Inc v Menon 581 US (2017) at 12; AIA Australia Ltd v Richards [2017] FCA 84 at [13] (Allsop CJ) and cases cited therein. As explained above, neither Hong Kong nor the British Virgin Islands have made any reservation to Article 10(a).
Article 19 of the Hague Service Convention substantively informs the application of r 11.8AC by providing that “to the extent that the internal law of a Contracting State permits methods of transmission, other than those provided for in the preceding Articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions”. Put differently, Article 19 preserves, rather than supplants, the local law of the State of destination.
The above analysis aligns with Bell CJ’s recent observations in Petersen Energía Inversora*, S.A.U. v Argentine Republic* [2025] NSWSC 1071 at [98] that “[n]either the express terms of the Convention nor their necessary implication prohibit Contracting States from making provision in their internal law for other forms of service”. Thus, I accept that service under Part 11 of the UCPR may give effect to the Hague Service Convention, and is not inconsistent with Part 11A for the purposes of r 11A.2.
In these proceedings, Finstro contended that Tradecorp Leasing and Tradecorp Global were served in accordance with the laws of Hong Kong and the British Virgin Islands, respectively, by express international post. Neither the affidavit of Calvin Cheuk Yin Chow nor Romauld Johnson gave evidence that Hong Kong or British Virgin Islands law permit postal service from abroad expressly for the purposes of Article 19 of the Convention. However, I accept that postal service from abroad is permitted by Article 10(a) of the Convention and so aligns with the evidence of the domestic laws of Hong Kong and the British Virgin Islands.
For those reasons, I accept that both Tradecorp Leasing and Tradecorp Global have been properly served in accordance with rr 11.8AC and 11.4 of the UCPR.

I accept that Finstro’s claims against Tradecorp Leasing and Tradecorp Global fall within Schedule 6 of the UCPR.
In respect of Tradecorp Leasing, clause 28.17 provides that the Facility Agreement, which binds Tradecorp Leasing, is “governed by and must be construed in accordance with the laws of New South Wales, Australia” and ensures that courts in New South Wales have “exclusive jurisdiction to settle any disputes arising out of or in connection with this agreement”. Thus, I accept that the claim against Tradecorp Leasing falls within Schedule 6(b)(iv).
In respect of Tradecorp Global, Finstro recognised that the position “differs” because the Share Mortgage Deed between Finstro and Tradecorp Global identifies Hong Kong as the “exclusive jurisdiction”. However, it is nevertheless contended that, in accordance with Schedule 6(b)(iii) of the UCPR, the Share Mortgage Agreement was to be “part performed in Australia”, because it secures an underlying contractual obligation governed by the laws of New South Wales involving an Australian lender.
This submission is difficult to accept without any attempt by Finstro to precisely identify what “performance” occurs in Australia. The underlying loan may be performed in Australia, but the Share Mortgage Deed does not clearly contain obligations performable in Australia. For example, delivering share certificates or registering a charge, would occur in Hong Kong, because Tradecorp Global, a British Virgin Islands company, has given security over its shares in Tradecorp Leasing, a Hong Kong company.
Nevertheless, Finstro’s claim against Tradecorp Global may fall within Schedule 6(h)(i) which states that “when any person outside of Australia is … a necessary or proper party to a proceeding properly brought against another person served or to be served (whether within Australia or outside Australia) under any other provision of these rules”. As I have accepted that the claim brought against Tradecorp Leasing is properly brought in New South Wales, the question is whether Tradecorp Global constitutes a “necessary or proper party”.
It is common in loan enforcement proceedings that the lender brings proceedings against both the principal debtor and the guarantor (or security provider), because the liability is coextensive. This fact makes Tradecorp Global a “proper party” in the sense that it allows the Court to grant effective relief and avoid the multiplicity of proceedings in different forums over the same underlying default. This view is supported by Clause 28.1(c) of the Share Mortgage Agreement, which states that “the Lender will not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction” (emphasis added) notwithstanding the exclusive jurisdiction clause designating Hong Kong. Thus, I accept that the claim against Tradecorp Global falls within sch 6(h)(i).