Hooke v Bux Global Limited

COLVIN J: 1 On 11 October 2018 I made orders winding up Bux Global Limited on just and equitable grounds: Hooke v Bux Global Limited (No 6) [2018] FCA 1545. The plaintiffs now seek orders for indemnity costs in the fixed amount of $535,016 and further seek orders that each of Raymond Webber, Andrew Webber and Christopher Webber (each of who was not a party to the winding-up application) be jointly and severally liable for the payment of those costs. 2 The costs application has been personally served on Mr Andrew Webber. On 13 December 2018 I made orders on the ex parte application of the plaintiffs dispensing with personal service on each of Mr Raymond Webber and Mr Christopher Webber of the costs application, the affidavit in support and the plaintiffs' submissions (Documents) and that service be effected by email at specified email addresses and by also emailing them to an email address used by Mr Andrew Webber with a request that the Documents be brought to the attention of each of Mr Raymond Webber and Mr Christopher Webber. I also ordered that the costs application be listed for hearing at 9.15 am on 22 January 2019 and that a copy of my orders be served in the same manner as the Documents. These are my reasons for making those orders. 3 I dealt with the principles to be applied on an application for a substituted form of service in Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500. For the following reasons, I was satisfied in this case that it was not practicable to effect personal service and that in all probability the proposed substituted mode of service would bring the documents and the hearing date to the attention of Mr Raymond Webber and Mr Christopher Webber. 4 First, each of the Raymond, Christopher and Andrew are members of the same family and, on the evidence before me, engage in business activities together. 5 Second, Mr Andrew Webber was personally served with the Documents on 31 October 2018 in Perth. 6 Third, in response to a formal statutory request for information from the liquidators of Bux Global, a copy of an email chain exchange between the office of the liquidators and Mr Andrew Webber at andrew.webber@champagneaustralia.com was obtained. On 3 December 2018, the liquidators asked for an updated address to contact Mr Raymond Webber and Mr Christopher Webber where physical correspondence could be sent. A response was received stating that correspondence should be sent to the email addresses at the domain shampagneasustralia.com that were specified in the orders that I made (Specified Email Addresses) and that '[a]ny physical correspondence could be sent to the registered address of Shampagne Australia Pty Ltd' being an address in Bondi Junction (Bondi Address). It then said that any correspondence 'not in the capacity as major shareholder and in our individual capacities' can be sent to 'to the same physical location for all 3 of us please'. 7 Fourth, a request from the liquidators for conformation that Mr Raymond Webber and Mr Christopher Webber were living at the Bondi Address was met with the following response (signed 'Andrew Webber'): I can't give you access to their physical home address only the address of shampagne where any information sent can be access by the 3 of us as required. You will need to ask them yourself and ask them to give you consent as to where their physical living address is as you can understand this is personal and confidential information. 8 Fifth, a search of the electoral role showed that a Mr Raymond Webber was listed at the Bondi Address. 9 Sixth, a search of the electoral role showed a Mr Christopher Webber listed at the Bondi Address and a person of the same name at a different address. 10 Seventh, attempts had been made to serve each of Mr Raymond Webber and Mr Christopher Webber personally at the Bondi Address. A licensed process server provided an affidavit in which he deposed to attempts to effect service. The affidavit deposed to a conversation with a neighbour at the Bondi Address who said that Raymond Webber's mother Ros lives at the address. The neighbour said that she did not think that Raymond lived there. 11 Eighth, previous emails sent to the Specified Email Addresses had not resulted in an undelivered response. 12 In the above circumstances, I made the orders sought. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.