Morrell v Sundance Marine Pty Ltd

Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173

Haire v WorkCo Australia Pty Ltd [2024] FCA 668

Hamilton v Meta Platforms, Inc (Service out of Jurisdiction) [2022] FCA 681

Kazar (liquidator) v Doshi, in the matter of PF1 Solutions Pty Ltd (in liq) [2024] FCA 577

McCabe (liquidator), in the matter of Sargon Capital Pty Limited v D'Souza [2025] FCA 620

Park (Trustee) v Tschannen (Bankrupt) [2016] FCA 137; (2016) 341 ALR 452

Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v Huang, in the matter of Royal Express Pty Ltd (No 3) [2021] FCA 611

Sanum Investments Limited v ST Group Co., Ltd (No 2) [2019] FCA 1047

Shield Holdings Australia Pty Ltd (in liq) v Binetter [2025] FCA 451

Tax Practitioners Board v Hinckfuss [2025] FCA 823

Taylor, in the matter of JM World AU Pty Ltd (in liq) [2022] FCA 1063

The Noco Company v Hong Kong Haowei Technology Co., Ltd [2023] FCA 533

University of New England v Boerner [2024] FCA 191

Wu v WYQ Family Pty Ltd [2024] FCA 511

SPBI, A FRENCH SIMPLIFIED JOINT STOCK COMPANY ("SOCIÉTÉ PAR ACTIONS SIMPLIFIÉE"), REGISTERED WITH THE TRADE AND COMPANIES REGISTER OF LA ROCHE-SUR-YON UNDER NUMBER 491 372 702

1. The interlocutory application dated 6 March 2026 for substituted service is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The Respondent and Cross-Claimant (Sundance) is applying for orders to permit substituted service outside Australia by way of email on the Cross-Respondent of the notice of cross-claim and statement of cross-claim, both dated 22 August 2025.
2. Sundance relies on an affidavit of Ms Teresa Aherne from Kennedys (Australasia) Pty Ltd sworn on 6 March 2026 (Aherne affidavit), and written submissions dated 10 March 2026. The Applicant (Mr Morell) does not wish to be heard on the application. The parties have asked that I determine the application on the papers.
3. For the following reasons, the interlocutory application is refused.

1. Summary of claims and cross-claims: Mr Morell claims (in a concise statement dated 19 May 2025) that a yacht he purchased from Sundance contains defects. The yacht is a Beneteau First 44 Performance yacht, and is manufactured by the Cross-Respondent. (The Aherne affidavit and Sundance's written submissions refer to the Cross-Respondent as "Beneteau". The cross-claim states that the named Cross-Respondent, SPBI, is represented by its legal representative, Beneteau, a public limited company with a board of directors.) Mr Morell claims that, by reason of the defects and certain alleged misrepresentations (including in a brochure published by Beneteau), he has suffered loss and damage.
2. In its cross-claim, Sundance claims that, if Sundance is liable to Mr Morell for any loss or damage, then Beneteau is obliged to provide contribution to Sundance in respect of that liability, because (a) Beneteau committed breaches of its contract with Sundance; (b) Beneteau should be liable for any misrepresentations contained in the brochure published by it, if it is not possible to apportion liability.
3. Beneteau does not accept service by email (Sep-Oct 2025): On 1 September 2025, Ms Aherne sent an email to a Mr Vincent Monod, Group General Counsel of Beneteau. This email attached the cross-claim and asked Mr Monod to advise whether Beneteau wished to nominate solicitors in Australia to accept service on behalf of Beneteau.
4. On 2 October 2025, Mr Monod replied to that email as follows:

Beneteau does not accept service of the cross-claim by email. If you wish to serve the cross-claim on Beneteau, please do so in a manner that complies with the requirements of French Law or the Hague Convention.

We note that the contracts referred to in the cross-claim contain arbitration clauses. In light of that, if you proceed to serve the cross-claim on Beneteau, Beneteau reserves the right to apply to the Federal Court of Australia for the proceedings against it to be stayed and for costs to be awarded against your client.

1. Progress of service on Beneteau under the Hague Convention (Sep 2025-Feb 2026): Ms Aherne states that Sundance's solicitors then took steps to effect service on Beneteau under the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters [2010] ATS 23 (Hague Convention). The Aherne affidavit sets out the progress in this application as follows:

(a) Kennedys filed documents with the Registry of this Court on 19 September 2025. On 24 September and 2 October 2025, the Registry requested that a Form 26A be provided, and that the description of the "forwarding authority" be changed. Kennedys complied with those requests on 25 September and 3 October 2025.

(b) On 17 October 2025, Kennedys provided the Registry with a request for service on Beneteau and hard copies of the documents. On 24 October 2025, Kennedys informed the Registry that it did not propose to translate the documents into French. On 27 October 2025, the Registry advised that the documents had been dispatched that morning.

(c) On 26 November 2025, the Registry emailed Kennedys advising that the documents had been returned to the Court, and that the documents were dispatched again on 14 November 2025.

(d) On 24 February 2026, the Registry emailed Kennedys advising that it had received correspondence from the French Central Authority stating that it had seized jurisdiction the day before Christmas, and that they would have to wait two or three months to accomplish service, depending on the police. That correspondence also indicated that the French Central Authority thought that the entity to be served was Sundance, not SPBI. On 25 February 2026, the Registry responded to a request for clarification from Kennedys as follows:

1. I confirm that the Court's letter to the French Central Authority stated that the entity to be served was SPBI. Upon receipt of Mr Fragman's email (which indicated to the Court that the French Central Authority may be confused regarding the entity to be served), the Court immediately responded requesting clarification that the entity to be served was SPBI, and not Sundance. As I previously stated, no response or clarification has been received from the Central Authority as yet.
2. Overseas service under the Hague Service Convention is, generally-speaking, a protracted process and it is normal for two to three months to pass before service is effected by the relevant overseas central authority. In some instances, overseas service under the Hague Service Convention can take up to six months. On the Hague Convention website, the French Central Authority provides information regarding the time for executing a request.

1. Application for substituted service (Mar 2026): On 6 March 2026, Sundance made this interlocutory application for substituted service.

Service of originating applications outside Australia

1. Personal service of cross-claim (r 8.06): Generally, an "originating application" (which includes a cross-claim) must be served personally: Federal Court Rules 2011 (Cth) r 8.06, read with definition of "originating application" in Sch 1.
2. Leave not required to serve outside Australia (r 10.42): I accept Sundance's submission that leave is not required to serve outside Australia. An originating application may be served outside Australia without leave in the types of cases listed in r 10.42, which include "if any person outside Australia is ... a respondent to a proceeding seeking contribution or indemnity in respect of a liability enforceable by a proceeding in the Court" (r 10.42(h)(ii)). The cross-claim comes within this description.
3. Usual method of service outside Australia (Div 10.6): Divisions 10.4 to 10.6 of the Rules provide for service of process outside Australia.
4. Relevantly to this case, Div 10.6 of the Rules provides for service under the Hague Convention (in particular Art 5). France is a party to the Hague Convention, meaning that service on its residents (including corporations) is ordinarily to be effected in accordance with the articles of that Convention and Div 10.6 of the Rules, which sets out the process for effecting service in a Hague Convention country: Haire v WorkCo Australia Pty Ltd [2024] FCA 668 at [26] (Horan J).
5. The process for service under Div 10.6 is as follows.
   • By r 10.64(1), a person may apply to a Registrar of this Court, in the Registrar's capacity as a forwarding authority, for a request for service in a Convention country. That request must comply with the requirements of r 10.64(2) to (5), such as a draft request be in accordance with Form 25, and a summary of the document to be served be in accordance with Form 26.
   • By r 10.65, if the Registrar is satisfied that the application and its accompanying documents comply with r 10.64, the Registrar must sign the request for service abroad, and forward two copies of the relevant documents to either the "nominated additional authority" for the Convention country (if the applicant so requests), or the "Central Authority" for the Convention country (in any other case).
   • The Convention country then arranges for service of the document. If the document is served in the Convention country, the Registrar receives a certificate of service. The original of the certificate is filed in the proceeding, and a copy is sent to the applicant's lawyers (r 10.66).

Substituted service outside Australia (r 10.24)

1. Rules r 10.24: Rule 10.24 of the Rules makes the following provision for substituted service generally:

10.24 Substituted service

If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order:

(a) substituting another method of service; or

(b) specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

(c) specifying that the document is taken to have been served:

(i) on the happening of a specified event; or

(ii) at the end of a specified time.

Note: Without notice is defined in the Dictionary.

1. Rule 10.49 does not exclude r 10.24: As a preliminary issue, I note that r 10.49 of the Rules makes specific provision for the Court to make an order for substituted service if "service on a person outside Australia, in accordance with ... the Hague Convention ... , was not successful". However, this Court has held that r 10.49 does not prevent r 10.24 from being relied on to order substituted service outside Australia: The Noco Company v Hong Kong Haowei Technology Co., Ltd [2023] FCA 533 at [17] (Moshinsky J); University of New England v Boerner [2024] FCA 191 at [6] (Wheelahan J); Wu v WYQ Family Pty Ltd [2024] FCA 511 at [6]- [7] (Feutrill J); Kazar (liquidator) v Doshi, in the matter of PF1 Solutions Pty Ltd (in liq) [2024] FCA 577 at [8] (Goodman J); see also Australian Information Commission v Facebook Inc [2020] FCA 531 at [65]- [66] (Thawley J). It is appropriate that I follow this line of cases.
2. Meaning of "not practicable": The precondition to engaging r 10.24 is that it is "not practicable" to serve a document on a person in the way required by the Rules.
3. Service need not be impossible or not feasible: Sundance contends, correctly, that "not practicable" does not mean that service in the ordinary way is impossible or not feasible. Sundance relies on the following statements in particular:
   • In Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10], Colvin J stated that r 10.24:

requires the applicant for orders for substituted service to demonstrate that it is not sensible or realistic to effect personal service even though it may be possible or feasible to do so. This will usually be done by taking steps to effect personal service and providing evidence as to any difficulties that have arisen in doing so. It is not necessary to go so far as to demonstrate that there is an inability to effect personal service or that it would be extraordinarily difficult to do so. Further, there must be a proper evidential basis upon which to conclude that in all probability the mode of substituted service that is proposed will bring the relevant documents to the attention of the party to be served.

• In Hamilton v Meta Platforms, Inc (Service out of Jurisdiction) [2022] FCA 681 at [45], Cheeseman J stated that the phrase "not practicable":

contemplate[s] a "state of affairs which is practically impossible to navigate without substantial difficulty": ... . It is not necessary to go so far as to demonstrate that there is an inability to effect personal service or that it would be extraordinarily difficult to do so - it will suffice for an applicant to demonstrate that it is not sensible or realistic to effect personal service even though it may be possible or feasible to do so: ... . Evidence of attempts to serve, attempts to contact the intended recipient and knowledge (or lack of knowledge) of the whereabouts of the intended recipient are relevant to the question of practicability: ... . (citations omitted)

1. Inconvenience is not sufficient: At the same time, the Court does not order substituted service merely because service in the ordinary way is inconvenient: Commissioner of Taxation v Zeitouni [2013] FCA 1011; (2013) 306 ALR 603 at [66] (Katzmann J); Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v Huang, in the matter of Royal Express Pty Ltd (No 3) [2021] FCA 611 at [8] (O'Bryan J); Shield Holdings Australia Pty Ltd (in liq) v Binetter [2025] FCA 451 at [36] (Halley J).
2. Relevant factors: In Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173 at [33], O'Bryan J accepted that principles of international comity and the importance of personal service in founding jurisdiction were relevant to the question of whether substituted service outside Australia should be ordered where service under a relevant convention or foreign law has not first been attempted. However, his Honour observed that in modern times the vast majority of communication occurs electronically by email or similar methods, and that s 37M of the Federal Court of Australia Act 1976 (Cth) requires that the Court's procedural powers be exercised in a way that best promotes facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Accordingly, in deciding whether to order substituted service outside Australia, O'Bryan J stated that the Court should take into account factors such as:
   • the subject matter of the proceeding (particularly whether it involves business or commercial matters) and the nature of its connection to Australia;
   • the difficulties and cost associated with attempting to serve the defendant outside Australia in accordance with the usual process;
   • the urgency of service;
   • the nature of the defendant's connection to Australia in the context of the proceeding and the defendant's facility with the English language; and
   • the likelihood that the method of substituted service will bring the documents to the attention of the defendant.
3. Purpose is to guard against stultification of proceedings: In Sanum Investments Limited v ST Group Co., Ltd (No 2) [2019] FCA 1047 at [148], Foster J stated that r 10.48 (which provides for deemed service when it is not practicable to serve in accordance with the Hague Convention, another convention or foreign law) is:

intended to ameliorate the stultification of cases against foreign defendants caused by an unduly cumbersome and uncertain set of requirements governing service of this Court's process in a foreign country[,]

and that, if the Court is satisfied that its process and other documents have come to the attention of the foreign defendants, the Court:

should not hesitate to deem service to have been effective if there is any suggestion that the law of the relevant foreign country as to service will unreasonably delay or even frustrate the progress of the proceeding.

1. These statements were applied by Stewart J in relation to r 10.48 in Royal Caribbean Cruises Ltd v Reed (No 3) [2021] FCA 225 at [46]. Given the similarity in language and purpose of r 10.48 and r 10.24 (as applied to service outside Australia), this reasoning is relevant to substituted service outside Australia: see Haire at [31]-[32], [46], [50].
2. Is ordinary service "not practicable" in this case? Applying these principles to this case, the issue is whether Sundance, using reasonable efforts, is unable to serve Beneteau in accordance with the applicable requirements under the Hague Convention: Haire at [33]; Tax Practitioners Board v Hinckfuss [2025] FCA 823 at [18] (Wheatley J).
3. Significant delays: I fully accept, as submitted by Sundance, that there have been significant delays in serving the cross-claim on Beneteau, and that this issue of service of the cross-claim is holding up the progress of this proceeding. The period taken so far is around five months: see [8] above.
   • Kennedys completed the application for service under the Hague Convention on 17 October 2025, and its documents were re-sent to France on 14 November 2025.
   • On 24 February 2026, the Registry stated that it had "recently" received correspondence from the French Central Authority suggesting that it had taken over the matter shortly before Christmas, and that service would take a further two to three months, depending on the French police. This correspondence also indicated that the French Central Authority may have been confused as to the entity to be served.
   • The Registry immediately sent an email clarifying that the cross-claim was to be served on SPBI. At the time of the Aherne affidavit, the Registry had not received any response from the French Central Authority.
4. Delays not caused by circumstances particular to this case: Even so, Sundance does not suggest (and could not suggest) that there is anything about the particular circumstances of Beneteau or this case that are causing the delays in service. For example, this is not a case where the proposed recipient is taking steps to avoid service, or where the address of the proposed recipient is unknown and could not reasonably be known: contrast the facts in McCabe (liquidator), in the matter of Sargon Capital Pty Limited v D'Souza [2025] FCA 620 at [15]- [20], [41] (Markovic J); Shield Holdings at [44]-[45]; Royal Express (No 3) at [6]; Taylor, in the matter of JM World AU Pty Ltd (in liq) [2022] FCA 1063 at [7] (Yates J); Wu at [8]; Hinckfuss at [19].
5. Instead, the period taken seems to be the result of the time taken in France for serving process under the Hague Convention generally. It may be that, with the benefit of hindsight, Sundance might reconsider its decision not to translate the documents into French. The evidence before the Court indicates that the process in France is ongoing (see [8](d) above): there is no suggestion that the French Central Authority is unable to serve Beneteau, or has tried unsuccessfully to serve Beneteau. There are statements in Sanum Investments suggesting that the Court may order substituted service if an "unduly cumbersome and uncertain set of requirements" for service in a foreign country would "unreasonably delay or even frustrate the progress of the proceeding": see [21] above. However, the Court would exercise some caution before concluding that the usual procedures for serving legal process in a wealthy industrialised country under the Hague Convention met that description.
6. Ford factors: The factors set out by O'Bryan J in Ford (summarised in [20] above) do not, on balance, support an order permitting substituted service.
   • The principles of international comity and the importance of personal service are relevant, and favour service being carried out in accordance with the Hague Convention: see Park (Trustee) v Tschannen (Bankrupt) [2016] FCA 137; (2016) 341 ALR 452 at [16] (Edelman J).
   • There have no doubt been difficulties and delays so far with attempting to serve Beneteau outside Australia in accordance with the Hague Convention; however, that process is ongoing and may still be successful in resulting in the cross-claim being served on Beneteau.
   • This proceeding concerns a single transaction for the sale to an Australian resident of a yacht manufactured by an overseas corporation. The proceeding does not have any particular urgency, other than the usual interest in litigation being resolved with reasonable expedition: this is not a case, for example, where it is necessary to move quickly to avoid property being dissipated or where there is a public interest in resolving a liquidation expeditiously: Royal Express (No 3) at [8]; Shield Holdings at [45].
   • Beneteau does not have any particular connection to Australia (although, at the same time, it does not have any difficulties with the English language).
   • On the other hand, I am satisfied that the proposed methods of substituted service would bring the documents to the attention of Beneteau; indeed, the evidence establishes that Beneteau is already aware of the cross-claim that has been brought against it in this proceeding: see [6]-[7] above.
7. Conclusion - substituted service not ordered: For these reasons, I am not satisfied that, as at the time of this application, service of the cross-claim in accordance with the Hague Convention is "not practicable" within r 10.24 of the Rules. This case is different from both Wu and Boerner, which are relied on by Sundance.
   • In Wu, the physical address of the eighth defendant was unknown, and it would not be possible to serve him in accordance with the Hague Convention in time for the existing trial date in that matter: Wu at [8]. Neither of those factors is present here.
   • In Boerner, a significant factor was that the proposed recipient of the Australian process (a subpoena) had indicated in correspondence that it would comply with any subpoena issued by this Court: Boerner at [2], [10]. Here, by contrast, the Group General Counsel of Beneteau has stated that Beneteau would not accept service by email: see [7] above.
8. The application for substituted service must therefore be refused.
9. Even if this conclusion on practicability were incorrect, there would be powerful discretionary reasons not to make an order for substituted service. As just noted, Beneteau has stated that it will not accept service by email. It cannot promote the efficient resolution of disputes within s 37M of the Federal Court Act for the Court to make an order that is likely only to provoke disputes about the effectiveness of service, and (if it came to that) the effectiveness of any judgment based on that form of service.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hill.