Waller v Freehills

(a) the orders of Registrar Goucke dated 3 October 2025 and Annexure C to those orders; and

(b) the summons for examination to Mr Yew Seng Lo and Schedule filed 6 October 2025.

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

1. The plaintiff, Daniel Bredenkamp, is the liquidator of Ultima United Limited.
2. Ultima was formerly a public company listed on the Australia Stock Exchange. It was wound up on the grounds of insolvency under the Corporations Act 2001 (Cth) by order made 13 April 2023. In August 2023, Ultima was delisted from the Australian Stock Exchange.
3. On 3 October 2025, a registrar of this Court made orders pursuant to s 596A of the Corporations Act providing for the public examination of each of four of Ultima's directors involved in the examinable affairs of Ultima. Summonses for examination were issued on 6 October 2025, requiring each of those directors to attend for examination and produce relevant documents.
4. The issue before me is limited to overseas service of those orders and the summons for examination on one of the directors, Mr Lo, who is located in Singapore.
5. It is not necessary to disclose details of the basis upon which the registrar granted orders or the nature of the enquiries being made by the liquidator. These matters have been disclosed to the Court and are the subject of a detailed affidavit provided by Mr Bredenkamp, which includes information of a confidential nature. It suffices to say that the liquidator is investigating the circumstances of a capital raising undertaken by Ultima in 2021; where the funds from the capital raising were deposited; and the accuracy of Ultima's share register. Mr Lo was a director at the relevant time. The liquidator has been unable to ascertain information from Mr Lo to date but has identified an address for Mr Lo in Singapore.
6. The liquidator currently holds funds which cannot be dispersed until issues relating to the share register are resolved.

Section 596A and extra-territoriality

1. Section 596A of the Corporations Act operates extraterritorially and applies to persons whether or not they are Australian residents or citizens: Waller v Freehills [2009] FCAFC 89 at [53]- [54], [58].
2. Comity issues that must be taken into account in the context of service of Australian processes abroad were closely considered in Waller. The Full Court accepted that an order for examination made pursuant to s 596B has a risk of adversely affecting international comity on the basis of the absence of a sufficient connection with Australia. As to this risk, the Court said:

[61] ...However, it appears this risk is recognised and accommodated within the section, by giving the court a discretion as to whether to issue the examination summons. Thus, it appears that the legislative scheme seeks to meet in some respect international law concerns regarding comity by vesting in the court discretion as to whether to issue a summons for the examination of a non-resident in the first place, as opposed to giving the court a power to determine whether such summons once issued, should be served.

1. The Full Court was also prepared to infer that the Parliament would have appreciated that the exercise by the Court of the jurisdiction to summons foreigners or non-residents to appear before it pursuant to s 596A and s 596B of the Corporations Act would necessarily involve an invasion of the sovereignty of the state in which the foreigner or non-resident is resident. Their Honours observed:

[96] ...It is further to be inferred that Parliament has decided that any international opprobrium attached to the passing of extraterritorial legislation is justified in the public interest for the protection of the interests of Australian creditors and contributories. Accordingly, the fact that the issue of an examination summons would involve an invasion of sovereignty per se carried little weight as a discretionary consideration in determining whether leave should be granted to serve the summons in a foreign country...

What the Federal Court Rules say about service outside Australia

1. Service outside Australia is governed by Part 10, Div 10.4 of the Federal Court Rules 2011 (Cth).
2. Rule 10.44 of the Federal Court Rules provides that any document other than an originating application may be served outside Australia with leave of the Court, which may be given with any directions that the Court considers appropriate.
3. Rule 10.46 of the Federal Court Rules provides that a document that is served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected.
4. This directs attention to the position for service of documents in Singapore.

Service in Singapore having regard to the Hague Convention

1. Singapore became a signatory to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (Hague Convention) as of 1 December 2023.
2. In accordance with r 10.46 of the Federal Court Rules, it follows that service must be effected in accordance with the Hague Convention and any other applicable laws of Singapore.
3. I have had regard to the relevant text of the Hague Convention and an extract from the official website for the Hague Conference on Private International Law entitled 'Singapore - Central authority & practical information'.
4. The position based on those sources was also summarised by the liquidator's solicitors and the following ([18]-[22]) is based on that summary.
5. Singapore requires that a request for service of documents under Article 3 of the Hague Convention (Request), and having regard to the service requirements of Article 5, be sent to Singapore's Central Authority, being the Ministry of Law of Singapore, together with the following documents:

(1) the document to be served;

(2) summary of the document to be served, in accordance with Part 3 of the 'Model Form'; and

(3) an English translation of these documents if they are not in English,

1. Singapore requires that the Request and Documents be sent to the Ministry of Law in one of the following ways:

(1) by email to the Ministry of Law's email address, as long as one physical set of the Request and Documents is also received by the Ministry of Law - any request sent via email will not be capable of execution unless one physical set of the Documents is also received; or

(2) by physical delivery (in duplicate) to the Ministry of Law's address.

1. Subject to any written law which provides for the manner in which documents may be served on a body corporate, service of a document will be effected by a process server:

(1) by leaving the document, and a copy of the translation of the document, with the person to be served;

(2) by a method of service authorised by the Rules of Court 2021 (Singapore) (Singapore Supreme Court Rules) for the service of analogous documents issued by the court; or

(3) by a particular method requested by the applicant, unless the method is inconsistent with any law for the time being in force in Singapore.

1. Singapore has declared that it is opposed to the direct service of judicial documents upon persons within its territory through foreign diplomatic or consular agents, unless the documents are to be served upon a national of the State from which the documents originate.
2. Singapore has declared that it objects to the service of judicial and extrajudicial documents within its territory by the methods of transmission set out in Article 10 of the Hague Convention. Article 10 of the Hague Convention provides, amongst other things, for the freedom to send judicial documents by postal channels directly to a person abroad.

1. The liquidator proposes that Mr Lo be served by a method of service authorised by the Singapore Supreme Court Rules (see [20(2)] above).
2. In summary, the Singapore Supreme Court Rules relevantly provide as follows:

(1) Rule 4A applies in relation to the service under Article 5 of the Hague Convention of any process or other court document required in connection with civil proceedings in respect of a civil or commercial matter instituted in a court or tribunal of a Contracting State, on a person in Singapore;

(2) Rule 4A(3) provides that the person to be served in Singapore must have a known address in Singapore;

(3) a request for service under r 4A must be made by an applicant to the Minister in the current version of Part 1 of the Model Form and be accompanied by prescribed documents (set out at r 4A(4));

(4) Rule 4A(8) provides that where the Minister is satisfied that the request complies with paragraphs (3) and (4) and the provisions of the Hague Convention, the Minister must forward the request to the Supreme Court with an intimation that it is desirable that effect should be given to the request;

(5) Rule 4A(9) provides for the methods for which service of the document is effected. These methods include:

(a) leaving the document, and a copy of the translation of the document, with the person to be served;

(b) a method of service authorised by the rules for the service of analogous documents issued by the court; or

(c) a particular method requested by the applicant, unless the method is inconsistent with any law for the time being in force in Singapore.

1. Pending the grant of leave by this Court for overseas service, the liquidator has applied in accordance with r 10.64 of the Federal Court Rules to a registrar of this Court (in the registrar's capacity as forwarding authority) for a request for service in Singapore.
2. The application is accompanied by a draft request for service addressed to the Central Authority in Singapore, the Ministry of Law of Singapore, together with copies of the documents for service, a summary of those documents and the undertaking with respect to costs of service abroad required by r 10.64(3). The documents are in English and no translation is required.
3. In other words, the liquidator seeks service to progress in a manner that accords with the Hague Convention, the Singapore Supreme Court Rules and the Federal Court Rules. He does not seek to do so in a way that offends the matters referred to at [21] or [22]. Rather, he relies on Articles 4 and 5 of the Hague Convention and the manner in which those requirements are addressed having regard to the Singapore Supreme Court Rules. In my view, there is nothing contentious in the manner of service that the liquidator proposes.

1. In all of the circumstances I am of the view that it is appropriate that the requested leave be granted. Examinations under s 596A of the Corporations Act requiring attendance and the production of books are important and long-standing provisions of Australian insolvency law. A registrar of this Court having already determined that it is appropriate that a summons should issue, I consider it appropriate that the liquidator should have the benefit of such orders to the extent (at least) that there be an order that they be served outside Australia and in accordance with the practical regime that the liquidator proposes to implement.

I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.