Wu v WYQ Family Pty Ltd

FEUTRILL J: 1 This is an application by the plaintiffs for an order for substituted service of the originating process as amended on the eighth defendant, and for leave to serve documents other than the amended originating process outside the jurisdiction. 2 On 18 April 2024, the Court made orders that the eighth defendant be joined as a party to the proceedings under r 9.05 of the Federal Court Rules 2011 (Cth). That is, although he is not a party against whom relief is sought, as he is alleged to be a party to an agreement between the plaintiffs and the sixth defendant he is a person who should be joined as a party in order to enable determination of all matters in the proceedings finally. So, he was a necessary party to be joined. 3 In accordance with r 8.06 of the Rules, personal service of the originating process is required. In accordance with r 10.01, it explains the manner in which personal service is usually undertaken, which is by way of service by leaving a document with the individual. Rule 10.42 provides that an originating application may be served outside Australia without leave of the Court in a number of different circumstances. I am satisfied that the proceedings in this case fall within the circumstances described in one or more of rr 10.42(b), 10.42(c), 10.42(e), 10.42(f), 10.42(h) and 10.42(j). Rule 10.44 provides that any document, other than the originating application, may be served outside Australia with leave of the Court, which may be given with any directions that the Court considers appropriate. 4 The plaintiffs' application requests an order that various of the documents that have been filed in the proceedings be served outside jurisdiction. These are the first further amended concise statement, amended concise statement in response, affidavits of Mr Xinguo Jiang, sworn 17 March 2021, 3 August 2021 and 14 December 2022; affidavits of Mr Yuequn Wu, sworn 17 March 2021, 20 July 2021 and 14 December 2022; an affidavit of Ms Lirui Zhu, sworn 17 May 2023; and an affidavit of Ms Lingyan Du sworn 17 May 2023. Therefore, an order would be required, as they are not originating applications, for leave to serve outside jurisdiction. 5 Rule 10.24 provides that if it is not practicable to serve a document on a person in a way required by the Rules, a party may apply to the Court, without notice, for an order substituting another method of service, amongst other things. That is the nature of the application the plaintiffs have made. 6 I interpolate that r 10.49 contains a specific provision dealing with service out of the jurisdiction in circumstances where a party has been unable to effect service in accordance with the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965 (Hague Convention) or the law of a foreign country. It might be thought then, that where there is a specific rule dealing with substituted service overseas, namely r 10.49, that the general rule relating to substituted service, namely r 10.24, is inapplicable. That issue, in respect of the current Rules, was addressed by Moshinsky J in The Noco Company v Hong Kong Haowei Technology Co., Ltd. [2023] FCA 533 at [14] - [16], where His Honour concluded, based on earlier authority dealing with the previous version of the Rules, that the specific wording in r 10.49 does not preclude orders being made under r 10.24 where appropriate. 7 Accordingly, I am satisfied that I have power, under r 10.24, to make an order for substituted service in the form that the plaintiffs have requested. As to the criterion upon which I must be satisfied before making such an order, Colvin J in Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 said (at [10]: The preponderance of authority is to the effect that the current rule 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. 8 The plaintiffs contend that service in this case on the eighth defendant, personally, is impracticable in the People's Republic of China for a number of reasons, which include that the physical address for the eighth defendant is unknown to them at this time. It is also contended that service through the Hague Convention will take significant time and is unlikely to take place before the commencement of the trial listed for hearing on 4 June 2024. 9 In a number of decisions of other judges of this Court, questions of substituted service have been considered in circumstances similar to these. In Commissioner of Taxation v Zou [2021] FCA 433 at [11]-[12], Davies J considered that the Hague Convention applied to service in China and made an order in that case for substituted service on the grounds that it was impractical to serve in accordance with the Hague Convention. Similarly, Moshinsky J made orders in The Noco Company case referred to earlier on the same grounds (at [19] - [20]) and Jackson J in Nipps (Liquidator), in the matter of Ochre Group Holdings Limited (in liq) [2023] FCA 687, applying similar principles, made an order for substituted service in that case. Amongst other things, at [10(7)], Jackson J referred to an earlier decision of the Court in Deputy Commissioner of Taxation v Ranguta Limited [2022] FCA 1572 at [26(2)-(3)], where his Honour said: (2) Under r 1.34 the Court has power to dispense with the requirement in r 10.49 that service on a person in a foreign country was not successful: Australian Information Commission v Facebook Inc [2020] FCA 531 (AIC v Facebook) at [66] (Thawley J); [Ford, Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173] at [32]. While international comity underlies that requirement, a rare example of when it might be appropriate to dispense with it is 'a case where there is real urgency for service and where the evidence suggests an impossibility or serious impracticability in service by the means contemplated in the Convention': Park (Trustee) v Tschannen (Bankrupt) [2016] FCA 137 at [16], [18] (Edelman J). (3) Such urgency can also justify an order for substituted service under r 10.24: see [23] above. 10 Having regard to the authorities referred to and the evidence contained in the affidavit filed in support of the application, I am satisfied that substituted service is appropriate and that by sending an email to the last known email address of the eighth defendant, the originating process and the documents are likely to come to his attention. Regarding the last known email address of the eighth defendant, the affidavit in support of the application identifies the email address by a number and that is identified in an email dated 9 December 2018. Having regard to the passage of time between December 2018 and April 2024, it may be that the email address for the eighth defendant has changed. 11 In those circumstances, having regard to the fact that it is common ground between the parties that the sixth defendant, whatever the terms of the agreements between them, is responsible for managing the investments the subject of those agreements, I infer that the sixth defendant has available to him contact information regarding the eighth defendant. I will therefore make a direction that the sixth defendant provide to the plaintiffs the last known email contact address for the eighth defendant as one of the directions made on the orders I am about to pronounce on the plaintiffs' application. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.

SCHEDULE OF PARTIES QUD 79 of 2021 Defendants Fourth Defendant: CADMIUM LAND FW2 PTY LTD Fifth Defendant: CADMIUM HOLDING PTY LTD Sixth Defendant: LIRUI ZHU Seventh Defendant: CADMIUM INVESTMENT PTY LTD ACN 162 380 976 Eighth Defendant: ZENGZHEN SHENG Ninth Defendant: CADMIUM INVESTMENT FW PTY LTD (ACN 615 067 411) Tenth Defendant: CADMIUM INVESTMENT FW2 PTY LTD (ACN 635 864 041) Eleventh Defendant: CADMIUM GROUP HOLDINGS PTY LTD (ACN 623 345 184) Twelfth Defendant: CADMIUM GROUP MANAGEMENT PTY LTD (ACN 623 343 920)