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[2020] VSC 872
General information, not legal advice.
Supreme Court of Victoria
2020-12-21
Connock, J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Application for substituted service of originating process and related documents - Substituted service of originating process - Where defendants are said to be located in Singapore - Foreign service procedure pursuant to r 7.10 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 6.02, 6.03, 6.10, 7.02, 7.05, 7.08, 7.09-7.15 - Civil Procedure Act 2010 (Vic) ss 7, 8, 9.
1 The plaintiffs seek orders for substituted service of the originating process and related documents on the second to tenth defendants by the proposed methods of service set out in Annexure A to these reasons (Service Methods Annexure).
2 For the reasons that follow substituted service orders should be made in respect of service upon each of the second to tenth defendants. The precise form of the orders will be addressed with counsel for the plaintiffs.
3 This proceeding relates in large part to the development of a property in Cardigan Street, Carlton, Victoria, (Cardigan Street Property) being carried out by a number of investors through the eleventh defendant (Cardigan).
4 The first plaintiff (Sanc Australia) once held approximately 36% of the shares in Cardigan and claims that it is entitled to have those shares transferred back to it. The second plaintiff, Mr Yang, is the sole director of Sanc Australia.
5 Various issues have arisen in connection with the development of the Cardigan Street Property, including the disputes the subject of the claims in this proceeding, being:
(a) disputes between, among others, Sanc Australia as borrower and the second, third, and fourth defendants as lenders, regarding: what if any money was or is owed by Sanc Australia to one or more of the lenders; the terms and operation of finance facility and security documents executed by Sanc Australia in favour of the lenders; and the alleged invalidity of three separate appointments of Stephen Dixon and Leigh Dudman[1] (Receivers) as joint and several receivers of Sanc Australia[2] (Receivers' Appointments);
(b) disputes between Sanc Australia and other shareholders in Cardigan in connection with the appointment of the Receivers to Sanc Australia being relied upon by other Cardigan shareholders as events of default by Sanc Australia under a shareholders deed between Cardigan and its shareholders (Shareholders Deed), and the subsequent sale and transfer to other Cardigan shareholders of Sanc Australia's 36.93% shareholding in Cardigan (Sanc Cardigan Shares) by the Receivers. The plaintiffs allege, among other things, that the sale and transfer of the Sanc Cardigan Shares was invalid, beyond the power of the Receivers, and in breach of the Shareholders Deed, and void.
6 The relief sought by the plaintiffs against the defendants includes declarations[3] that the Receivers' Appointments are and were invalid; declarations that the default notices issued by the fifth to tenth defendants under the Shareholders Deed were invalid; a declaration that the transfers of the Sanc Cardigan Shares are void; and orders requiring the transfer back to Sanc Australia of the Sanc Cardigan Shares.
7 What was described as the 'Havenport Group' was said by Mr Yang in his affidavit (Yang Affidavit), to have been involved in providing finance facilities to entities associated with him in relation to the acquisition and development of various properties, including to Sanc Australia in connection with the Cardigan Street Property. Mr Yang's evidence was that the fifth to tenth defendants are '... entities associated with Havenport Investments Pte Ltd and Havenport Capital Pte Ltd ...'.[4]
8 The second and third defendants, (Mr Tan and Mr Tern respectively) are each said to be 'a managing partner' of the Havenport Group. There was also evidence that each of Mr Tan and Mr Tern are directors of the fourth, fifth and seventh defendants.
9 The fifth to tenth defendants are said to be Cardigan shareholders and the fifth, sixth, and eighth to tenth defendants are each alleged to have been transferees of a proportion of the Sanc Cardigan Shares, with the aggregate of those proportions comprising 100% of the Sanc Cardigan Shares.
10 The Receivers were served with the originating process and have filed an appearance. Directions were recently made between the plaintiffs and the Receivers in relation to the delivery of pleadings. The statement of claim was filed on 7 December 2020 and the amended statement of claim is to be filed on 21 December 2020. The Receivers have not yet filed a defence, which is currently scheduled to be done by 24 December 2020.
11 The second and third defendants are said to be located in Singapore. The fourth, fifth, and seventh to tenth defendants are companies incorporated in Singapore with each having Singapore addresses. The sixth defendant is a company incorporated in the British Virgin Islands which is also said to have a Singapore address. Cardigan is the eleventh defendant and the claim against it has been discontinued.
12 By summons filed on 9 December 2020 (summons), the plaintiffs sought orders under r 6.11 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) that the originating process filed in this proceeding on 20 October 2020 (originating process) and the Yang Affidavit be deemed to have been served on the second to tenth defendants on 19 November 2020, and that the statement of claim be deemed to have been served on the second to tenth defendants on 9 December 2020.
13 In the alternative, the summons sought orders for substituted service of the documents on the second to tenth defendants pursuant to r 6.10 of the Rules, with the proposed methods of service including international post and email to various email addresses as referred to in the Service Methods Annexure.
14 The hearing of the summons was expedited and came on for hearing on 15 December 2020. At that time only the substituted service application was pressed, noting also that the court observed that the evidence suggested that the court documents sent by the plaintiffs to the second to tenth defendants by that time had not included any Form 7AAA notices addressing the requirements of r 7.02 of the Rules. The substituted service application was adjourned part heard to enable the plaintiffs: further to consider their position in relation to r 7.02; to amend their statement of claim; and to better identify in the voluminous affidavit material[5] the evidence relied upon in relation to the proposed methods of service for each of the nine defendants in respect of whom the substituted service orders were sought.
15 The hearing of the substituted service application resumed on 21 December 2020. The documents in respect of which substituted service orders are sought comprise:
(a) The originating process filed 20 October 2020.
(b) A Form 7AAA Notice.
(c) The Yang Affidavit.
(d) The amended statement of claim to be filed on 21 December 2020.
(e) A copy of the court's order permitting substituted service.
(collectively, Documents).
16 The affidavit material comprised the Yang Affidavit (and exhibits) and seven affidavits (and exhibits) of Ms Punam Kaur Roopra, a solicitor for the plaintiffs. The plaintiffs also relied on emails produced by the Receivers in response to a notice to produce.[6]
17 Rule 6.10 of the Rules provides as follows:
6.10 Substituted service
(1) Where for any reason it is impracticable to serve a document in the manner required by these Rules, the Court may order that, instead of service, such steps be taken as the Court specifies for the purpose of bringing the document to the notice of the person to be served.
(2) Where the Court makes an order under paragraph (1), the Court may order that the document be taken to have been served -
(a) on the happening of any specified event; or
(b) on the expiry of any specified time.
(3) The Court may make an order under paragraph (1) notwithstanding that the person to be served:
(a) is out of Victoria; or
(b) was out of Victoria when the proceeding commenced.
18 As the terms of the Rules make clear, the purpose of any permitted method of substituted service is to bring the relevant documents to the notice of the person to be served.
(a) The primary object of substituted service is to bring to the knowledge of the person in respect of whom substituted service is sought the whole proceeding, so that the person can take such steps as they think proper to protect their interests and rights. It is not proper to substitute service of process in a court of law where there is no belief that the service will bring the proceedings to the knowledge of the person in question or of any person representing their interests.[9]
(b) The 'operative condition' in the opening words of the rule is that it be 'impracticable to serve a document in the manner required by [the] Rules'. The expression 'for any reason' has been said to be broad and to be given a wide meaning. What is required is that, for any reason, it is impracticable to serve the document in the manner required by the Rules. Where the court finds that this condition is satisfied and it is proper to do so in the exercise of the court's discretion, an order for substituted service may be made, including with respect to a person who is outside Australia. As Bell J has observed, Order 7 does not derogate from the breadth and operation of r 6.10.[10]
(c) The mere fact that a person is outside Australia is not sufficient in and of itself to establish that it is impracticable, and it is not permissible to use substituted service only for the purpose of side stepping the obstacles to personal service abroad.[11] By parity of reasoning it may be added that, unless the requirements of r 6.10 are satisfied and it is a proper exercise of the court's discretion to order substituted service, it is similarly not permissible to use substituted service for the purpose only of sidestepping other obstacles to serving documents in accordance with the Rules.
(d) It does not inexorably or necessarily follow that because a document cannot be served promptly that this will mean that service in accordance with the Rules is impracticable. It will always depend on the facts, and in every case it is necessary to consider the requirements of the rule by reference to the individual circumstances in question.[12]
(e) As was the case in Howse v Campbell[13] (Howse), substituted service has been ordered in cases where a defendant could not be served and there were just grounds to believe that the defendant was withdrawing from service.
(f) As Garde J observed in Austin,[14] r 6.10 is also to be read and applied in the context of the Civil Procedure Act 2010 (Vic) (CP Act), including the overarching purpose of facilitating the just, efficient, timely and cost effective resolution of the real issues in dispute.[15]
(g) Once r 6.10 is engaged, the principal matter for the court to consider, having regard to the particular facts and circumstances of each case, is whether steps can be taken for the purpose of bringing the document to the notice of the person to be served. If no such steps can be identified where little is known about the actual whereabouts or domestic connections of a person then that may be a discretionary reason for refusing an order for substituted service. However, where the steps proposed are very likely to bring the court documents to the attention of the person in question, then an order may be made.[16]
(h) Some cases have involved orders directing service on a former solicitor, whether they acted in relation to the same matter or a different matter. Howse[17] is an example where Holroyd J noted that the solicitor who had acted for the defendant previously had said in his affidavit that '... he has no instructions to accept service ...'. His Honour observed that this was 'not a satisfactory answer' and concluded that the solicitor having recently acted for the defendant he (Holroyd J) '... should infer that he [the solicitor] could communicate with [the defendant] if he liked ...'.[18]
20 The plaintiffs relied on their written submissions,[19] which they supplemented orally, the detail of which need not be set out. In substance, the plaintiffs submitted that:
(a) The threshold condition in r 6.10 was satisfied because it was impracticable to serve the Documents on the second to tenth defendants personally. In this context reliance was placed upon: the nature of the claim; the need for expedition given the relief sought in relation to the alleged invalid appointment of the Receivers, the share transfers, the ongoing development of the Cardigan Property, and the role Sanc Australia would play in decision making and shareholder resolutions if the Sanc Cardigan Shares are transferred back to Sanc Australia; and uncertainty and a potential 4 - 8 month delay in connection with overseas service which in part was said to be contributed to by complications associated with the COVID-19 pandemic being experienced internationally and in this court with foreign service requests.[20]
(b) The multiple methods of service referred to in the Service Methods Annexure for the proposed substituted service of the Documents on each of the second to tenth defendants will bring them to the attention of each of the second to tenth defendants. As is apparent from the Service Methods Annexure, the proposed methods of service include service by way of email, international post, domestic post to Moray & Agnew solicitors,[21] as well as notifications by text message to the second and third defendants, Mr Tan and Mr Tern.
(c) Making the substituted service orders is in accordance with the overarching purpose and the court's obligations under the CP Act in relation to that purpose, whereas not so ordering would be to act in a manner inconsistent with the overarching purpose and the court's related obligations under the CP Act.
(d) The plaintiffs' position is was supported by the decision of Kenny J in KerryJ Investment Pty Ltd v Xiamen Fengwei Energy Technology Co Ltd, (KerryJ Investment),[22] particularly insofar as that decision addressed the question of impracticability, the nature of the proceedings, and the likely delay in service overseas in accordance with the Federal Court Rules.
Impracticable to serve the Documents in accordance with the Rules
21 Having regard to the evidence and the principles and observations earlier referred to, I am satisfied that the plaintiffs have established that it is impracticable to serve the Documents on the second to tenth defendants in accordance with the Rules.[23]
22 The plaintiffs had originally proposed to serve the originating process and some additional court documents on each of the second to tenth defendants in Singapore utilising the procedures specified in the Rules for the service of court documents in foreign countries. It is necessary to elaborate a little about this.
23 Rule 6.02 requires personal service of originating process. Rule 7.02 details the claims in respect of which an originating process may be served out of Australia without the leave of the court. Rule 7.05 requires a Form 7AAA notice to be served with originating process served out of Australia setting out the information required by r 7.05. Rule 7.08 allows any document other than an originating process to be served out of Australia with the leave of the court.
24 Part 2 of Order 7 of the Rules prescribes the procedure for service in a country that is not a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention). It applies in this case because Singapore is not a signatory to the Hague Convention.[24]
25 Briefly, and without reciting its detail, the procedure prescribed by Part 2 of Order 7 (Foreign Service Procedure) involves: the lodging of the documents to be served with the Prothonotary; the filing of a request for service in a foreign country and other documents, including undertakings; the Prothonotary sealing the documents lodged and sending them to the Attorney-General for transmission for service (with a letter of request where necessary);[25] the forwarding of the documents for service through official channels to that other country together with any necessary letter of request; service taking place in the country concerned; and where received, a certificate of a judicial authority[26] as to service being evidence of the matters stated in the certificate.[27]
26 The Foreign Service Procedure is facilitated in part by foreign service clerks in the office of the Prothonotary whose responsibilities include part of the processing of foreign service requests and communicating with parties making such requests.
27 In the present case, on 13 November 2020 the plaintiffs' solicitors delivered to the Prothonotary nine bundles of documents for service on the second to tenth defendants in Singapore, together with requests for foreign service, undertakings, and other documents.[28]
28 In October, November, and December 2020 various steps were also taken by the plaintiffs to serve the second to tenth defendants informally, including by sending emails to known addresses, seeking to understand if Moray & Agnew solicitors were authorised to accept service,[29] and arranging for a Singapore law firm's court clerk to hand deliver the originating process, statement of claim and Yang Affidavit to what were said to be known addresses in Singapore of each of the second to tenth defendants on 10 December 2020.[30]
29 A directions hearing in this proceeding was scheduled for 27 November 2020 and by email of 18 November 2020 the plaintiffs' solicitors enquired about the progress of the foreign service request and when it was likely that the second to tenth defendants would be served through the Foreign Service Procedure. On 20 November 2020 the plaintiffs' solicitors were informed by the court's foreign service clerk that due to ongoing COVID-19 restrictions internationally, delays were being experienced with respect to service of foreign documents. In addition it was stated that, due to COVID-19 restrictions in Victoria, the court was operating on a skeleton staff physically present in the Prothonotary's office which meant that, given the size of the requests, it may take some time before each request could be processed and sent on to the 'forwarding authority'.
30 The plaintiffs' solicitors were also informed by the foreign service clerk that the COVID-19 restrictions internationally were such that the court was unable to say when the second to tenth defendants would likely be served,[31] and it was noted that other outgoing requests that the court had processed during the year 'have taken anywhere between 4 to 8 months to be returned with confirmation of successful service'.[32]
31 It was in this context that the plaintiffs then initiated the applications the subject of their summons and pressed the substituted service application, noting also that the plaintiffs' solicitors have asserted in correspondence their belief that the second to tenth defendants are seeking to avoid being served.[33]
32 Having regard to the particular circumstances of this case as reflected in the evidence and briefly referred to above, I am satisfied that the plaintiffs have established that it is impracticable to serve the Documents on the second to tenth defendants in accordance with requirements of the Foreign Service Procedure in the Rules.[34] By way of elaboration I draw attention to the following matters.
33 On the evidence it is clear that the application has not been brought by the plaintiffs with the purpose of, or as a means of, sidestepping the Foreign Service Procedure or personal service requirements under the Rules. On the contrary, the plaintiffs have sought to utilise that procedure in the way earlier referred to. It is the practical difficulties that have been encountered in connection with the Foreign Service Procedure in the context of this particular case and the nature of the claims made and relief sought that has resulted in the substituted service application being made. In any event, the language of r 6.10 is broad, is to be construed as such, and as earlier observed, is not derogated from by Order 7.
34 Given the nature of the proceeding, the relief claimed, the ongoing development of the Cardigan Street Property, the material sums involved, the terms of the Shareholders Deed, and the controversy regarding the Sanc Cardigan Shares, I accept for at least the purpose of this application that there is a need for a level of expedition in relation to the proceeding and that it is a proceeding which, on the claims as currently framed in the amended statement of claim, may materially affect the rights and interests of all of the defendants if the plaintiffs ultimately succeed.
35 It is not a case where inherent delay in and of only itself, or in a vacuum, is sought to be used as a basis for seeking the substituted service orders. It is uncertainty and delay in the context of the nature of the proceeding, the relief sought, the commercial circumstances in play, and the material commercial interests of all the defendants in question that may be affected - which uncertainty and delay has been compounded by COVID-19 restrictions internationally as well as COVID-19 restrictions in Victoria. This impact includes the understandable effect on physical processing in the courts given the nature and extent of the foreign service requests as referred to in the email correspondence, and the service uncertainty and delays internationally that the foreign service clerk referred to. It is also to be emphasised that r 6.10 requires service in accordance with the Rules to be 'impracticable', not impossible.
36 Further, taking into account questions of delay and uncertainty in the context of other relevant considerations when assessing and determining whether service in accordance with the Rules is impracticable sits comfortably with the overarching purpose in s 7 of the CP Act and the court's obligations in relation to it, including those in ss 8 and 9 of that Act.
37 Whilst all cases depend on their own facts and the conclusion in this case does not mean that such COVID-19 related uncertainty or delay internationally or elsewhere will result in the 'impracticable' requirement in r 6.10 being satisfied in other cases, the uncertainty and delays in processing and service in the present case do weigh materially given the nature of the claims, the commercial circumstances, the Receivers' Appointments, the material interests and roles of the defendants, and the relief sought.
38 With respect to the individuals who are the second and third defendants, and noting the level of engagement and correspondence between the parties prior to this proceeding being issued that is referred to in the evidence, it also appears that there is at least a question as to whether these two defendants, each of whom appears to be materially involved with the commercial venture in question, may be seeking to avoid being served, or consciously not acknowledging receipt of the originating process and other documents sent to their known email addresses. Considering the evidence regarding past communications with the second and third defendants, and the email communications from the plaintiffs' solicitors sending the originating process to them, and communications from Moray & Agnew solicitors,[35] on the current evidence such an inference is in my view open. That being so - or even if such avoidance was considered to be no more than likely or realistically possible - this is another factor supporting the impracticability of service in accordance with the Rules on the second and third defendant, and to some extent the fourth, fifth and seventh defendants given that Mr Tan and Mr Tern are directors of each. However, this aspect need not be further explored and can be put to one side because by reason of the matters earlier referred to, the impracticability of service on the second and third defendants requirement has been satisfied in any event.
39 For completeness I add that, whilst it is true that my conclusion regarding impracticability in this case appears to sit comfortably with the findings of Kenny J on the same topic in KerryJ Investment, it is of little substantive assistance to the plaintiffs in the present case. KerryJ Investment was a case involving a different rule in a different court context and, as carefully reasoned as her Honour's decision was, it stands as but one of many examples of a judge considering the requirement of impracticability in the context of the peculiar facts of the case then before them.
40 Being satisfied as I am that it is impracticable to serve the Documents on each of the second to tenth defendants in accordance with the Rules, I turn to the question of discretion and the particular methods of proposed service as set out in the Service Methods Annexure.
41 The proposed multiple methods of service for each of the second to tenth defendants are detailed in the Service Methods Annexure, which was derived from the annotated[36] proposed form of order provided as part of the plaintiffs' submissions in advance of the hearing on 21 December 2020.
42 Having considered the evidence relating to each of the second to tenth defendants separately by reference to the multiple proposed methods of service for each, I am satisfied that by serving the Documents in the multiple ways proposed for each of the said defendants it is at least very likely that the Documents will be brought to the notice of each defendant.
43 I refer to without setting out again each of the proposed methods of service for each of the defendants in question as set out in the Service Methods Annexure and I elaborate briefly below as to why I am so satisfied in relation to each of the second to tenth defendants.
44 The evidence shows that the email address to be used is Mr Tan's email address, that it has been used in communications between the plaintiffs and Mr Tan in the past, and that it has been used as recently 22 October 2020 by Moray & Agnew solicitors to send communications to Mr Tan and others about this very proceeding.
45 I refer, for example, to the shareholder default notices from each of the fifth to tenth defendants sent to Sanc Australia that were said to be served pursuant to the Shareholders Deed.[37]
46 The email of 22 October 2020 (3:38 pm) from Moray & Agnew to the Receivers, copied to Mr Tan, the third defendant Mr Tern, and Michelle Ong is a further example. This email was sent a day after the plaintiffs' solicitors sent the originating process and the Yang Affidavit to Moray & Agnew by email. The Moray & Agnew Email to the Receivers referred to this proceeding in its 'Subject ' line, attached the court documents in this proceeding, and stated as follows:
Dear Mark and Stephen
I believe you have been served with the attached court documents.
We are appointed to act for 2nd - 11th defendants and we have informed Vanessa [of the plaintiffs' solicitors] that we do not have any instructions to accept service on behalf of any of the said defendants.
Are you available for a teleconference on Monday? Please let me know. Thanks.
SK
Shok Kuan Ho Special Counsel
47 That was followed by an email from Shok Kuan Ho 20 minutes later (3:58pm) to the same addressees with the same subject in the subject line, which read as follows:
Apologies
We are NOT appointed by the 2nd - 11th defendants and we DO NOT have any instructions to accept service of process on behalf of any of the said defendants for this proceeding.
48 The residential address to which it is proposed to send the Documents by international mail is recorded in recent company searches of the fourth, fifth and seventh defendants as Mr Tan's address and Mr Tan is recorded as being a director of each of these companies.
49 The registered office address of the fifth defendant to which the documents are to be sent is the same as that recorded in the recent company search of that company, noting again that Mr Tan is recorded as being a director.
50 The Moray & Agnew office address is established and the emails of 22 October 2020 referred to above (Moray Agnew Emails) show that Moray & Agnew have been communicating with Mr Tan in relation to this proceeding and sent him the court documents by at least 22 October 2020. There was also evidence that Moray & Agnew have been heavily involved with the commercial venture in question and have acted for Mr Tan in relation to it. One example is their letter of 20 July 2020. It can be inferred that Moray and Agnew can communicate with Mr Tan. That Moray & Agnew have stated that they do not have instructions to accept service is not to the point.
51 The proposed telephone number to be used to send a text message about the proceeding and the service of the Documents is the number that the second plaintiff has used to communicate with Mr Tan over an extended period, which was supported by the contact details screen shot of the same.
52 I add that I am also satisfied on the evidence that Mr Tan has been sent, among other things, the originating process and Yang Affidavit by email on more than one occasion, including it seems by Moray & Agnew on at least 22 October 2020, and the plaintiffs' solicitors on 19 November 2020.
53 In the circumstances it is appropriate to permit service of the Documents on Mr Tan in the manner proposed.
54 The evidence shows that the email address to be used is Mr Tern's email address, that it has been used in communications between the plaintiffs and Mr Tern in the past, and that it has been used as recently 22 October 2020 by Moray & Agnew solicitors to send communications to Mr Tern and others about this proceeding. See, for example, the shareholder default notices referred to above and the Moray Agnew Emails.
55 The residential address to which it is proposed to send the Documents by international mail is recorded in recent company searches of the fourth, fifth and seventh defendants as Mr Tern's address. Mr Tern is recorded as being a director of each of these companies.
56 The registered office address of the fifth defendant to which the Documents are to be sent is the same as that recorded in the recent company search of that company, noting again that Mr Tern is recorded as being a director.
57 The Moray & Agnew office address is established and the Moray Agnew Emails show that Moray & Agnew have been communicating with Mr Tern in relation to this very proceeding and that they sent him the court documents by at least 22 October 2020. They have also acted for Mr Tern in relation to the venture as, for example, their letter of 20 July 2020 states. It can be inferred that Moray & Agnew can communicate with Mr Tern. That Moray & Agnew have stated that they do not have instructions to accept service is not to the point.
58 The proposed telephone number to be used to send a text message to Mr Tern about the proceeding and the service of the Documents is the number that the second plaintiff has used to communicate with Mr Tern over an extended period, which was supported by the contact details screen shot of the same.
59 I am also satisfied on the evidence that Mr Tern has been sent, among other things, the originating process and Yang Affidavit by email on more than one occasion, including by Moray & Agnew on at least 22 October 2020 and the plaintiffs' solicitors on 19 November 2020.
60 In the circumstances it is appropriate to permit service of the Documents on Mr Tern in the manner proposed.
61 Mr Tan and Mr Tern are each officers of Applecart. The evidence shows that the email addresses to be used are Mr Tern's and Mr Tan's email addresses as referred to above. I refer in this regard to the observations made earlier about those email addresses.
62 The proposed registered office address of Applecart to which the Documents are to be sent by international post is the same as that recorded in the recent company search of Applecart.
63 The HM Ong Lawyers' Melbourne office address is established. The writ in proceeding S ECI 2020 04386 filed by Applecart on 26 November 2020 (Applecart Proceeding) names Mr Yang (the second plaintiff in this proceeding) as the defendant and records Ms Michelle Ong of HM Long Lawyers as acting for Applecart. Ms Ong was also copied into the Moray Agnew Emails. It can be inferred that Ms Ong can communicate with and is communicating with Applecart in relation to at least the Applecart Proceeding. That Ms Ong says she has no instructions to accept service does not affect the position.
64 The Moray & Agnew address is established and the Moray Agnew Emails show that Moray & Agnew have been communicating with Mr Tan and Mr Tern, officers of Applecart, and Ms Ong, in relation to this proceeding and that they sent the court documents to them by at least 22 October 2020. It can be inferred that Moray and Agnew can communicate with Mr Tan, Mr Tern and Ms Ong, and through them, Applecart. That Moray & Agnew have stated that they do not have instructions to accept service is not to the point.
65 I am also satisfied on the evidence that Applecart has been sent, through Mr Tan and Mr Tern, among other things, the originating process and Yang Affidavit by email on more than one occasion, including by Moray & Agnew on at least 22 October 2020 and the plaintiffs' solicitors on 19 November 2020.
66 In the circumstances it is appropriate to permit service of the Documents on Applecart in the manner proposed.
67 Mr Tan and Mr Tern are each officers of Havenport Investments. The evidence shows that the email addresses to be used are Mr Tern's and Mr Tan's email addresses as previously referred to and I refer to the observations made above about those email addresses.
68 The proposed registered office address of Havenport Investments to which the Documents are to be sent by international post is the same as that recorded in the recent company search of Havenport Investments.
69 The HM Ong Lawyers' Melbourne address to which the documents are to be sent is established. The email of 26 November 2020 (12:39pm) to Ms Leong, who is Mr Yang's wife, states that she (Ms Ong) 'acts on behalf of Havenport Investments' and it attaches a notice of default and demand. There is a similar email to Mr Yang. Ms Ong was also copied into the Moray Agnew Emails. It can be inferred that Ms Ong can communicate with, and recently has been communicating with, Havenport Investments. Again, that she does not have instructions to accept service is not relevantly material.
70 The Moray & Agnew address is established and the Moray Agnew Emails show that Moray & Agnew have been communicating with Mr Tan and Mr Tern, officers of Havenport Investments, and Ms Ong, in relation to this proceeding and that they sent the court documents to them by at least 22 October 2020. It can be inferred that Moray & Agnew can communicate with Mr Tan, Mr Tern and Ms Ong, and through them, Havenport Investments. That Moray & Agnew have stated that they do not have instructions to accept service does not change this.
71 I am also satisfied on the evidence that through at least Mr Tan and Mr Tern, Havenport Investments has been sent, among other things, the originating process and the Yang Affidavit by email on more than one occasion, including by Moray & Agnew on at least 22 October 2020 and the plaintiffs' solicitors on 19 November 2020.
72 In the circumstances it is appropriate to permit service of the Documents on Havenport Investments by the methods proposed.
73 The evidence shows that the email address to be used is the email address for Sapphire Shores. This is evident from the default notice that Sapphire Shores sent Sanc Australia under the Shareholder Deed.[38] That notice shows that it was signed by Harpal Singh for Sapphire Shores and records his email address as the email address that is proposed to be used for service. This is also supported by other documents including, for example, the Shareholder Deed and the demand of Monark Finance Dev 56 Pty Ltd to Cardigan as borrower and, among others, Sapphire Shores as Obligor, which records the same email address.[39]
74 The proposed office address of Sapphire Shores to which the Documents are to be sent by international post is the same as that recorded in the default notice that Sapphire Shores sent Sanc Australia under the Shareholder Deed. It is supported by other documents including the Monark Finance demand earlier referred to and the Shareholder Deed. It may also be noted that when service was attempted by the court clerk from the Singapore law firm the person at the premises '... refused to accept service ...'.
75 The Moray & Agnew address is established and the Moray Agnew Emails show, and it may be inferred, that Moray & Agnew can and have been communicating with persons on behalf of Sapphire Shores, noting in this regard the references in the Moray Agnew Emails to the '2nd - 11th' defendants in each of the emails, and Moray & Agnew's history and involvement with the Cardigan Street Property development over an extended period as revealed by the Yang Affidavit. Again, that Moray & Agnew have stated that they do not have instructions to accept service is not to the point.
76 I am also satisfied that Sapphire Shores has been sent among other things, the originating process and Yang Affidavit by email, including by email of 19 November 2020 from the plaintiffs' solicitors.
77 In the circumstances it is appropriate to permit service of the Documents on Sapphire Shores by the methods proposed.
78 Mr Tan and Mr Tern are each officers of Havenport Capital. The evidence shows that the email addresses to be used are Mr Tern's and Mr Tan's email addresses as previously referred to and I refer to the observations made above about those email addresses.
79 The proposed registered office address of Havenport Capital to which the Documents are to be sent by international post is the same as that recorded in the recent company search of Havenport Capital.
80 The Moray & Agnew office address is not controversial and the Moray Agnew Emails show that Moray & Agnew have been communicating with Mr Tan and Mr Tern, who are directors of Havenport Capital, in relation to this proceeding and that they sent the court documents to them by at least 22 October 2020. It can be inferred that Moray & Agnew can and recently have been communicating with Mr Tan, Mr Tern and through them, Havenport Capital. That Moray & Agnew have stated that they do not have instructions to accept service is again not to the point.
81 I am also satisfied on the evidence that Havenport Capital has been sent, through Mr Tan and Mr Tern, among other things, the originating process and the Yang Affidavit by email on more than one occasion, including by Moray & Agnew on at least 22 October 2020 and the plaintiffs' solicitors on 19 November 2020.
82 In the circumstances it is appropriate to permit service of the Documents on Havenport Capital by the methods proposed.
83 The evidence shows that the email address to be used is an email address for Momaki. This is evident from at least the demand of Monark Finance Dev 56 Pty Ltd to Cardigan as borrower and, among others, Momaki as Obligor, which records the same email address.[40] It was also used (it may be inferred, without difficulty), by Sanc Australia in response to the default notice that Momaki sent Sanc Australia under the Shareholders Deed regarding the appointment of the Receivers.[41]
84 The proposed office address of Momaki to which the Documents are to be sent by international post is the same as that recorded as its registered office in the recent company search. It is supported by other documents including the Monark Finance demand earlier referred to. The position is a little clouded because when the court clerk attended at this address service was refused and it appears that the clerk was informed that the premises were being used by a different company. But that is inconsistent with the company search. In any event, it does not impact the outcome given that service on the registered office is only one of the methods to be adopted.
85 The Moray & Agnew office address is established and the Moray Agnew Emails show, and it may be inferred, that Moray & Agnew can and have been communicating with persons on behalf of Momaki, noting again in this regard the references in the Moray Agnew Emails to the '2nd - 11th' defendants in each of the emails, and Moray & Agnew's history and involvement with the Cardigan Street Property development over an extended period as revealed by the Yang Affidavit. Again, that Moray & Agnew have stated that they do not have instructions to accept service is of no relevant consequence.
86 I am also satisfied that Momaki has been sent among other things, the originating process and the Yang Affidavit by email, including by the email of 19 November 2020 from the plaintiffs' solicitors.
87 In the circumstances it is appropriate to permit service of the Documents on Momaki by the methods proposed.
88 The evidence shows that the email address to be used is an email address for Chng Consulting. This is evident from at least the demand of Monark Finance Dev 56 Pty Ltd to Cardigan as borrower and, among others, Momaki as Obligor, which records the same email address.[42] It is also consistent with the relevant person being Dr Chng given that the email address commences with 'drchng@'. It was also used (it may be inferred, without difficulty), by Sanc Australia in response to the default notice that Momaki sent Sanc Australia under the Shareholders Deed regarding the appointment of the Receivers.[43]
89 The proposed office address of Chng Consulting to which the Documents are to be sent by international post is the same as that recorded as its registered office in the recent company search.
90 The Moray & Agnew office address is established and the Moray Agnew Emails show, and it may be inferred, that Moray & Agnew can and have been communicating with persons on behalf of Chng Consulting, noting again in this regard the references in the Moray Agnew Emails to the '2nd - 11th' defendants in each of the emails, and Moray & Agnew's history and involvement with the Cardigan Street Property development over an extended period as revealed by the Yang Affidavit. Once again, that Moray & Agnew have stated that they do not have instructions to accept service does not affect the position.
91 I am also satisfied that Chng Consulting has been sent among other things, the originating process and the Yang Affidavit by email, including by the email of 19 November 2020 from the plaintiffs' solicitors.
92 In the circumstances it is appropriate to permit service of the Documents on Chng Consulting by the methods proposed.
93 The evidence shows that the email address to be used is the email address for the company secretary of Merryn Capital, Mr Arnold Tan. That he is the person representing Merryn Capital in relation to the Cardigan Street Property development is also supported by other documents including, for example, the terms of the Shareholders Deed. This is also evident also from the demand of Monark Finance Dev 56 Pty Ltd to Cardigan as borrower and, among others, Merryn Capital as Obligor, which records the same email address.[44] It was also used (it may be inferred, without difficulty), by Sanc Australia in response to the default notice that Merryn Capital sent Sanc Australia under the Shareholders Deed regarding the appointment of the Receivers.[45]
94 The proposed office address of Merryn Capital to which the Documents are to be sent by international post is the same as that recorded as its registered office in the recent company search, which is supported by various other documents including, for example, the default notice sent by Merryn Capital to Sanc Australia under the Shareholders Deed. As for Momaki, the position in respect of Merryn Capital is a little clouded because when the court clerk attended at this address service was refused and it appears that the clerk was informed that the premises were being used by a different company. However, as with Momaki, that is inconsistent with the company search. In any event, it does not impact the outcome given that service on the registered office is only one of the multiple service methods to be adopted.
95 The Moray & Agnew office address is established and the Moray Agnew Emails show, and it may be inferred, that Moray & Agnew can and have been communicating with persons on behalf of Merryn Capital, noting again in this regard the references in the Moray Agnew Emails to the '2nd - 11th' defendants in each of the emails, and Moray & Agnew's history and involvement with the Cardigan Street Property development over an extended period as revealed by the Yang Affidavit. Again, that Moray & Agnew have stated that they do not have instructions to accept service does not affect the position.
96 I am also satisfied that Merryn Capital has been sent among other things, the originating process and the Yang Affidavit by email, including by the email of 19 November 2020 from the plaintiffs' solicitors.
97 In the circumstances it is appropriate to permit service of the Documents on Merryn Capital by the methods proposed.
98 The plaintiffs propose to amend their statement of claim and to the extent required seek leave to do so. The amendments make the plaintiffs' claims clearer and delete many allegations that are not to be pressed. The Form 7AAA notice proposed to be served has been prepared by reference to this amended statement of claim.
99 Rule 36.04 permits a party to amend any pleading served by that party once without leave before the close of pleadings. Pleadings have not yet closed and therefore leave to amend is not strictly required. However, leave was sought because the proceeding is in a managed list in the Commercial Court. Taking into account rr 36.01 and 36.04 of the Rules, the proposed amendments, the principles relevant to the amendment of pleadings,[46] the overarching purpose in the CP Act, and the court's obligations in relation to the same, it is appropriate to grant the leave sought to the extent that it is required. Of course this does not impact on the defendants' rights in relation to the adequacy or otherwise of the amended statement of claim.
100 It is appropriate to make substituted service orders and I propose to:
(a) make substituted service orders permitting the plaintiffs to serve the Documents on the second to tenth defendants by the methods referred to in the Service Methods Annexure and require a text message to be sent to each of the second and third defendants;[47]
(b) also require the Documents to be served on each of the second to tenth defendants by sending them to Ms Shok Kuan Ho's email address at Moray & Agnew;
(c) to the extent that leave may be required pursuant to r 7.08 of the Rules to serve on the second to tenth defendants documents additional to the originating process, grant such leave insofar as it relates to the Documents;
(d) vacate paragraph two of the orders made on 27 November 2020 requiring the Receivers to file and serve their defence to the statement of claim by 24 December 2020 and direct that the first defendants' defence to the amended statement of claim be filed and served by 21 January 2021;
(e) to the extent required, grant leave to the plaintiffs to file and serve their amended statement of claim;
(f) maintain the next directions hearing date of 19 February 2021; and
(g) reserve the costs of the plaintiffs' application.
Applecart Investments Private Limited (Company Registration No. 201728296E)
SANC (AUSTRALIA) PTY LTD (ACN 605 902 241) (RECEIVERS APPOINTED)
(AS JOINT AND SEVERAL RECEIVERS OF SANC (AUSTRALIA) PTY LTD (RECEIVERS APPOINTED))
APPLECART INVESTMENTS PRIVATE LIMITED (COMPANY REGISTRATION NO. 201728296E)
CARDIGAN COMMERCIAL PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ACN 634 598 520)
[1] Collectively named as the first defendant in this proceeding.
[2] Being appointments: as receivers and managers on 12 May 2020 by the fourth defendant, which is said to have ceased on 20 May 2020; as receivers and managers on 22 May 2020 by the second and third defendants, which is said to have ceased on 20 July 2020; and as receivers on 20 July 2020 by the second and third defendants, which is said to be ongoing.
[3] Including pursuant to s 418A of the _Corporations Act 200_1 (Cth) (Act).
[4] Being the fifth and seventh defendants respectively.
[8] Ibid at [28], noting also the cases cited at footnote 5 in that paragraph.
[9] See Miscamble v Phillips and Hoeflich (No. 2) [1936] 2 St R QD 272 at 274 (Starke J).
[10] See generally Carter Holt Harvey Woodproducts Australia Pty Ltd v David [2015] VSC 393 (Carter Holt Harvey) at [9]-[12] (Bell J).
[11] See Carter Holt Harvey at [9]-[12] (Bell J).
[12] See Austin at [28]-[33] (Garde J).
[14] [2018] VSC 755, [31]-[32].
[15] Section 7 of the CP Act. See also the obligations imposed upon the court in this context by ss 8 and 9 of the CP Act.
[16] See Carter Holt Harvey at [15].
[19] Including an annotated draft order with evidentiary references.
[20] Singapore is not a party to the Hague Convention.
[21] And an additional firm of solicitors for the fourth defendant.
[23] See rr 6.02, 6.03 and 7.09 - 7.14.
[24] Consequently Order 80 of the Rules, which addresses service in Convention countries of a 'local judicial document', does not apply. See rr 80.02 and 80.03.
[25] Which in practice occurs through the Department of Foreign Affairs and Trade.
[26] Or certain other specified persons. See r 7.14.
[27] See generally rr 7.09 - 7.15 and see Order 80 regarding service in countries that are party to the Hague Convention.
[28] Having made an earlier attempt by email of 27 October 2020 that did not adequately address the requirements of Part 2 of order 7.
[29] And another firm of solicitors, which is discussed further later in these reasons.
[30] As referred to in exhibit PKR 14 to the fifth Roopra affidavit filed 15 December 2020, noting the observations made by the court clerk in the email on page 3 of that exhibit and the company searches also exhibited, which are discussed further below. It appeared on the evidence that no Form 7AAA notices were included with any of the documents attempted to be served informally, which was confirmed to be the position by senior counsel for the plaintiffs during the hearing.
[31] After the applications had been processed and forwarded by the Prothonotary.
[32] Email dated 20 November 2020 from Supreme Court of Victoria Foreign Service Clerk. The evidence did not cover the service requirements in Singapore and no reliance was sought to be placed on r 7.09 of the Rules.
[33] See, for example, the letter of 17 November 2020.
[34] Or serve the originating process personally on them.
[36] Which was annotated with various references to aspects of the evidence relating to the many methods of proposed service detailed in the Service Methods Annexure.
[37] Exhibit TY 1 to the Yang Affidavit at pages 454-463.
[39] Exhibit PKR5 ( pages 25-26) to the first Roopra affidavit.
[40] Exhibit PKR5 (pages 25-26) to the first Roopra affidavit.
[41] Pages 460-1 of Exhibit TY1 and exhibit PKR 12 (page 18) to the third Roopra affidavit.
[42] Exhibit PKR5 (pages 25-26) to the first Roopra affidavit.
[43] Pages 460-1 of Exhibit TY1 and exhibit PKR 12 (page 18) to the third Roopra affidavit.
[44] Exhibit PKR5 (pages 25-26) to the first Roopra affidavit.
[45] Pages 460-1 of Exhibit TY1 and exhibit PKR 12 (page 18) to the third Roopra affidavit. That it is operative is also supported by an automatically generated email response received on 15 December 2020 stating that Mr Tan was on leave and checking emails intermittently and '... may not be able to respond immediately ...'.
[46] See, for example, the discussion in Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd (No 2) [2020] VSC 284 [13]-[19] (Connock J).
[47] Although I do not at this stage propose to make an order that service by the methods proposed is deemed to be effective service. This is without prejudice to the plaintiffs' right to apply for such an order at a later stage in the light of the then prevailing circumstances.
Sanc (Australia) Pty Ltd
Dixon and Ors [2020] VSC 872