AGC Capital Securities Pty Ltd v JaiJaifu Modern Agriculture (HK) Limited

[2019] NSWSC 62

Supreme Court

New South Wales

Medium Neutral Citation:	AGC Capital Securities Pty Ltd v JaiJaifu Modern Agriculture (HK) Limited [2019] NSWSC 62
Hearing dates:	6 February 2019
Decision date:	06 February 2018
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	(1) Pursuant to rule 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW) I grant leave to the plaintiff to proceed against the defendant. (2) I direct that the plaintiff may apply for default judgment in accordance with the usual practice of the Court in conformity with the Uniform Civil Procedure Rules 2005 (NSW). (3)   Make no order as to costs.
Catchwords:	CIVIL PROCEDURE — Service outside Australia —Proceedings in which permitted — Application for leave to proceed — Leave of the court required to proceed against a person outside Australia served with an originating process if the person has not entered an appearance — Rule 11.8AA and schedule 6 of the Uniform Civil Procedure Rules 2005 (NSW) — Principles derived from Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Legislation Cited:	Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 11.8AA, Sch 6
Cases Cited:	Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Bingley-Pullin v Montgomery [2018] NSWSC 1308 Rossiter v Core Mining Limited [2015] NSWSC 360 Yoon v Lee [2017] NSWSC 1338
Category:	Procedural and other rulings
Parties:	AGC Capital Securities Pty Ltd (Plaintiff) JaiJaifu Modern Agriculture (HK) Ltd (Defendant)
Representation:	Counsel: M Klooster (Plaintiff)   Solicitors: Unified Lawyers (Plaintiff)
File Number(s):	2018/00302437
Publication restriction:	Nil

Judgment

1. HER HONOUR: From in the duty list this morning there is an application by the plaintiff, pursuant to a summons filed 4 October 2018, for leave under r 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for the plaintiff to proceed against the defendant (a company registered in Hong Kong). If leave be granted, the plaintiff intends to file for default judgment. For such leave to be granted a number of matters must be satisfied.

2. Reference was made by Counsel for the plaintiff to the decision of Campbell J in Bingley-Pullin v Montgomery [2018] NSWSC 1308 in which his Honour in turn referred to the decisions of Darke J in Yoon v Lee [2017] NSWSC 1338 and of Adamson J in Rossiter v Core Mining Limited [2015] NSWSC 360. At [3] of his judgment, Campbell J referred to the principles derived from Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 , which was concerned with the previous rule under the Supreme Court Rules 1970 (NSW). Each of Adamson and Darke JJ had taken the view that the discretion to be exercised under the current rule remained the same. Campbell J followed their Honours in that regard, and there is no reason to depart therefrom.

3. The relevant considerations may be summarised as follows:

1. That the defendant has been properly served.

2. That the claim in the originating process falls within Sch 6 to the UCPR.

3. That it be demonstrated that there is a real issue to be determined. (I note in this regard that Campbell J (at [5]) referred to this requirement as being that the plaintiff has an arguable case being one that would be sufficient to survive an application for summary judgment.)

4. That this Court is not a clearly inappropriate forum.

4. There is evidence that satisfies me that the defendant has been properly served, and in that regard I rely upon the affidavit of service of Chan Kwok Ho, which was sworn on 14 November 2018 and filed in Court this morning, deposing to service on 12 November 2018 of the relevant documents at a business address in Hong Kong, which (by reference to the exhibit to the affidavit sworn 3 October 2018 of Mark Machaalani, the solicitor with the day-to-day carriage of the matter on behalf of the plaintiff) is the registered office of the defendant.

5. As to the second matter (that the claims in the originating process fall within Sch 6 to the UCPR) the plaintiff tendered (Exhibit B) a copy of the form prescribed under the UCPR (Form 161) in relation to service outside the jurisdiction pursuant to rule 11.7 of the UCPR, which identifies the grounds on which the plaintiff maintains that the claims in the originating process fall within Sch 6 to the UCPR. (A copy of that form was served on the defendant by email dated 6 April 2017 – see Exhibit A.)

6. In summary, the claims in these proceedings by the plaintiff relate to an allegation of breach of contract or, in the alternative, a claim for quantum merit, in relation to an agreement said to be constituted by acceptance of a mandate letter dated 1 April 2016 (such acceptance signified by the signing of that mandate letter on 1 December 2016 by the director of the defendant Qingki Li) and the provision in Australia of services under the agreement. The agreement was one which provided for the assistance by the plaintiff (to an Australian subsidiary of the Hong Kong company) in enabling the entry into an Initial Public Offering (IPO) and listing of a company now listed on the Australian Stock Exchange, JiaJiafu Modern Agriculture Limited. There is evidence which, if accepted, would support the claim by the plaintiff that those services were provided.

7. Under the mandate letter, as accepted on its face by the defendant, there is provision for the payment of fees, relevantly including a capital raising fee and a corporate retainer. There is evidence before me of invoices rendered to the Australian incorporated company, totalling roughly $76,000, and there is evidence that at least the first two of those invoices (totalling $44,000), were brought to the attention of the defendant in April 2017, in circumstances where a claim was there made on the defendant in relation thereto.

8. I am satisfied that the claims in the originating process fall within Sch 6 to the UCPR.

9. As to the third requirement, that there be a real issue to be determined, or a sufficiently arguable case to survive an application for summary judgment, I am satisfied on the material put before me, including the material in and exhibited to the affidavit of Mark Machaalani sworn 3 October 2018, that this requirement is satisfied.

10. Finally, the fourth requirement is that I be satisfied that this Court is not a clearly inappropriate forum. There is nothing in the mandate letter which contains any choice of law or jurisdiction clause, but there are numerous references in the letter (to which I have been referred) to regulatory requirements within Australia, and the affidavit of Mr Machaalani deposes to his instructions as to the provision of services in Australia. I am satisfied, on that evidence, that this Court is not a clearly inappropriate forum.

11. In those circumstances and where there has been no appearance entered by the defendant within 42 days from the service on the defendant of the summons, I am persuaded that it is in order to grant the relief sought this morning, and accordingly, I make the following orders:

1. Pursuant to rule 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW) I grant leave to the plaintiff to proceed against the defendant.

2. I direct that the plaintiff may apply for default judgment in accordance with the usual practice of the Court in conformity with the Uniform Civil Procedure Rules 2005 (NSW).

3. Make no order as to costs.

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Decision last updated: 11 February 2019