DERRINGTON J:
1 On 16 February 2022, the applicants, Ms Jessica Jane Kellow and Mr Iain Bruce Shephard, who are liquidators of Advanced Building & Construction Limited (in liquidation) (Advanced Building & Construction) filed an originating application seeking recognition of a foreign insolvency proceeding under Articles 15 and 17 of the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (Model Law). The Model Law is incorporated into the Cross-Border Insolvency Act 2008 (Cth) (Cross-Border Insolvency Act) by s 6 of that Act. The liquidators also filed an interlocutory process on 16 February 2022 seeking orders in relation to service and publication of that application, and they further filed an interlocutory process seeking certain relief under Article 21 of the Model Law (Article 21 interlocutory process). The first interlocutory application was heard ex parte and was supported by an affidavit of Mr Shephard, sworn on 15 February 2022.
2 The liquidators are licensed insolvency practitioners under the Insolvency Practitioners Regulation Act 2019 (NZ), which enables them to undertake company liquidations. There is, therefore, no doubt about their standing.
3 Advanced Building & Construction was involved in the building industry in New Zealand constructing social housing and teaching buildings for Kainga Ora and the New Zealand Ministry of Education in the North Island of New Zealand. It granted a charge over all of its property to GAMOS Services Limited (GAMOS) on 31 January 2019 by way of a general security agreement. On 31 March 2021, Ms Kellow and Mr Shephard of BDO Wellington were appointed by GAMOS as the administrators of the respondent pursuant to s 239K of the Companies Act 1993 (NZ) (Companies Act NZ). GAMOS' power to appoint administrators was derived from the general security which had become enforceable. In that regard, s 239K of the Companies Act NZ finds its cognate provision in s 436C of the Corporations Act 2001 (Cth) (Corporations Act).
4 On 5 August 2021, Ms Kellow and Mr Shephard were appointed liquidators of Advanced Building & Construction following a resolution passed by a meeting of creditors on that date. They are seeking to conduct appropriate investigations into the affairs of the respondent company and, in the course of that, they wish to publicly examine its directors, Mr Darryn William Harmer and Mr Patrick Wayne O'Brien, each of whom reside in Queensland, Australia.
5 For present purposes, the interlocutory application is directed to orders relating to service and publication of the application for recognition of a foreign insolvency proceeding. Those requirements arise by reason of r 15A.3(3) of the Federal Court (Corporations) Rules 2000 (Cth) (FCCR), which provides:
When filing the originating process, the foreign representative must file, but need not serve, an interlocutory process seeking directions as to service, and the Court may give directions about service, and make any incidental orders, that it thinks just.
6 Rule 15A.3(2) of the FCCR provides:
(2) The originating process must:
(a) be accompanied by the statements referred to in article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act; and
(b) name the foreign representative as the plaintiff and the debtor as the defendant; and
(c) be accompanied by an affidavit verifying the matters mentioned in paragraphs 2 and 3 of article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act.
7 Rule 15A.3(4) of the FCCR provides:
(4) The plaintiff must serve a copy of the originating process and the other documents mentioned in subrule (2):
(a) unless the Court otherwise orders, in accordance with subrule 2.7 (1); and
(b) on any other persons the Court may direct at the hearing of the interlocutory process.
8 Rule 2.7 of the FCCR provides:
2.7 Service of originating process or interlocutory process and supporting affidavit
(1) As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on:
(a) each defendant (if any) to the proceeding; and
(b) if the corporation to which the proceeding relates is not a party to the proceeding - the corporation.
(2) As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on:
(a) each respondent (if any) to the application in the interlocutory process; and
(b) if the corporation to which the application in the interlocutory process relates is not a party to the application in the interlocutory process - the corporation.
9 The effect of r 2.7(1) is that it requires service of copies of the originating court documents on the respondent company. As it is now in liquidation, the respondent's registered office is now care of the applicants' offices and it follows that compliance with r 2.7(1) would require the applicants to effectively serve themselves which, as it was submitted, would serve no purpose. That observation is reasonable and should be accepted.
10 As mentioned, the gravamen of the application by the liquidators is directed to ascertaining the examinable affairs of the respondent company and, in particular, by undertaking a public examination of its directors. The applicants submitted that it would be appropriate to serve the relevant documents on those directors so that they were aware of the application and, if they see fit, oppose it. In accordance with r 15A.3(4) of the FCCR, the applicants requested the Court to direct copies of the originating documents to be served on each of the directors, and asked for orders that service be affected by prepaid post or email addressed to Mr Darryn William Harmer at 10 Lagoon Court, Brisbane, 4503, and to the email address darryn@partnersinproperty.com.au, and to Mr Wayne Patrick O'Brien at 68 Boxer Avenue, Brisbane, 4128, and to the email address OBCO6668@outlook.com.
11 In the applicants' written submissions it is noted that similar orders for service were made by Gleeson J in Abate, in his capacity of Onix Capital SA [2017] FCA 751 at [65] - [66]. In that case, her Honour dispensed with the formal requirements under rr 15A.3(3) and (4), agreeing with Counsel's submissions that there was no utility in serving the application on the applicant liquidators and instead, relevantly, ordered service on the representatives of the director, Mr Chang.
12 For present purposes, I am of the opinion that service on the directors as requested is entirely appropriate and that it occur in the manner requested by the liquidators. At the very least that will give the directors advance notice of the application which they may seek to oppose.
13 The next issue relates to publication and notices of the application. Rule 15A.6 of the FCCR provides that:
15A.6 Notification of filing of application for recognition
(1) Unless the court otherwise orders the plaintiff in the proceedings mentioned in rule 15A.3 must:
(a) send a notice of the filing of the application in accordance with form 20 to each person whose claim to be a creditor of the defendant is known to the plaintiff; and
(b) publish a notice of filing of the application for recognition of a foreign proceeding in accordance with form 20 in the daily newspaper circulating generally in the State or Territory where the defendant has its principal or last known place of business.
…
14 The liquidators seek orders that the Court direct them to provide notice of the proceedings to each person who claims to be a creditor by:
(a) sending a Form 20 by prepaid post to each of the creditor's known mailing addresses, or by email to each creditor's known email address if any email is known; and
(b) publishing a copy of the notice in the Dominion Post and New Zealand Herald.
15 In his affidavit, Mr Shephard identified that he was aware of the email addresses of some of the known creditors of the respondent. It would be an appropriate saving of time and cost were the liquidators to give notice by email to those creditors in respect of whom they have email addresses. Mr Shephard also deposed that the Dominion Post is the newspaper circulating generally where the respondent has its principal, or last known place of business, being Lower Hutt and that the New Zealand Herald is a publication that is distributed nationally. I am satisfied on the material that those publications are appropriate for giving general notice of the application.
16 The next issue concerns the applicants' request for orders for service of the Article 21 interlocutory application. As mentioned, the applicants seek further relief under that article of the Model Law upon orders being made for the recognition of the foreign insolvency proceeding as a "main proceedings".
17 In the Article 21 interlocutory process, the applicants seek orders subsequent to the recognition of the foreign proceedings (should those orders be made) for:
(a) a moratorium from:
(i) commencing or continuing any enforcement of action or legal proceeding against the respondent in Australia; and
(ii) any right to transfer, encumber or otherwise dispose of any of the respondent's assets;
(b) the administration, realisation and distribution of the respondent's assets located in Australia be entrusted to the applicants;
(c) all powers normally available to the liquidator appointed under the provisions of the Corporations Act be conferred on and exercisable by the applicants in relation to the respondent; and
(d) the applicants may, as they deem appropriate, examine witnesses, take evidence and obtain delivery of information concerning the respondent's assets, affairs, rights, obligations, or liabilities.
18 The applicants' solicitors submitted that orders of this nature were made in Wong, in the matter of Mackellar (Bankrupt) v Mackellar [2020] FCA 1151. There is no doubt that such orders can and are appropriate in certain circumstances. Although that case was one dealing with foreign bankruptcy, there is no reason why that which was discussed there would not apply mutatis mutandis to any foreign insolvency proceeding.
19 In their written submissions the applicants properly identified that on one view of the Model Law and r 15A.8, it may be that an interlocutory process seeking relief under Article 21(1) of the Model Law is required to be filed and served only after the recognition orders are made. In that regard, r 15A.8 provides:
15A.8 Relief after recognition
(1) If the Court has made an order for recognition of a foreign proceeding, any application by the plaintiff for relief under paragraph 1 of article 21 of the Model Law must be made by filing an interlocutory process, and any supporting affidavit, in accordance with Form 3.
(2) Unless the Court otherwise orders, an interlocutory process under subrule (1) and any supporting affidavit must be served, in accordance with subrule 2.7 (2), but on the following persons:
(a) the defendant;
(b) any person that the Court directed be served with the originating process by which the application for recognition was made;
(c) any other person that the Court directs.
(3) A person who intends to appear before the Court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.9.
20 In support of the orders that the Article 21 interlocutory process be served at the same time as the originating process such that it may be heard together with that main process, the applicants submitted as follows. First, it would save the expense of the duplication of service, notice requirements and a separate hearing of the Article 21 interlocutory process subsequent to the recognition hearing if the Article 21 interlocutory process was served in the same manner on the same persons and at the same time as the originating documents. The consequence would be that at the hearing of the main application, the Article 21 interlocutory process might also be dealt with. Secondly, the parties who will be affected by the further orders sought in the Article 21 interlocutory process are the same who will be affected by the orders in the originating process; namely the directors. Thirdly, that by serving all the documents on the respondents' directors and known creditors at the same time, sufficient notice will be given to all parties of their ability to appear on the hearing of the originating process and make any relevant submission in relation to both applications. Fourthly, the granting of consequential relief at the same hearing as the recognition order is not unusual: Crumpler v Global Tradewaves (in liq) [2013] FCA 1127; Tai-Soo Suk v Hanjin Shipping Co, Ltd [2016] FCA 1404.
21 Those authorities referred to support the proposition for which the applicants contend and, given the liquidators' purpose in seeking to have the foreign proceedings recognised as a foreign insolvency proceeding is to undertake a public examination of the respondent's directors, there is much utility in acceding to the request to serve the interlocutory process together with the originating process. It will, of course, save both time and expense, and necessarily both of those matters are obviously important in any insolvency proceeding. At present, there does not appear to be any disadvantage which the proposed recipients of the applications might suffer if both sets of documents were served simultaneously. In any event, at the hearing of the interlocutory process if the directors feel that insufficient notice has been given or that for some other reason the interlocutory application cannot be heard immediately following the main proceedings, that issue can be raised and ventilated at that time.
22 In those circumstances, I am prepared to make the orders sought in the draft.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.