Arab v Pan, in the matter of Pan

[2023] FCA 948

FEDERAL COURT OF AUSTRALIA

Arab v Pan, in the matter of Pan [2023] FCA 948   

File number:	NSD 664 of 2023
Judgment of:	YATES J
Date of judgment:	9 August 2023
Catchwords:	PRACTICE AND PROCEDURE – application for substituted service
Legislation:	Federal Court Rules 2011 (Cth) r 10.24
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	7
Date of hearing:	9 August 2023
Counsel for the Applicants:	Mr D Neggo
Solicitor for the Applicants:	Stacks Law Firm
Counsel for the Respondent:	The respondent did not appear

ORDERS

NSD 664 of 2023

IN THE MATTER OF THE BANKRUPT ESTATE OF PAN SUTONG

BETWEEN:

OSMAN MOHAMMED ARAB AND WONG KWOK KEUNG AS JOINT AND SEVERAL TRUSTEES OF THE BANKRUPT ESTATE OF PAN SUTONG

Applicants

AND:

PAN SUTONG

Respondent

ORDER MADE BY:	YATES J
DATE OF ORDER:	9 AUGUST 2023

THE COURT ORDERS THAT:

1.Upon the undertaking of the applicants' solicitor to pay any applicable filing fee, leave be granted to the applicants to file the interim application dated 9 August 2023.

2.The interim application be returnable instanter.

3.Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) and/or r 14.03(3) of the Federal Court (Bankruptcy) Rules 2016 (Cth), personal service on the respondent of the applicants’ application filed on 4 July 2023, and the affidavit affirmed by Wong Kwok Keung on 29 June 2023 comprising 77 paragraphs and exhibit WKK-1, be dispensed with.

4.Pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), substituted service of the applicants’ application filed on 4 July 2023, and the affidavit affirmed by Wong Kwok Keung on 29 June 2023 comprising 77 paragraphs and exhibit WKK-1, be effected on the respondent by hand delivering the documents to Messrs Patrick Mak & Tse, solicitors, at Rooms 901-905, 9th Floor, Wing On Centre, 111 Connaught Road Central, Hong Kong, the date of service being the date that the documents are hand delivered.

5.At the time that substituted service is effected in accordance with Order 4, a copy of these orders be served on Messrs Patrick Mak & Tse by the same method of service.

6.The costs of the interim application be the costs of the bankrupt estate of the respondent.

7.The proceeding be listed for a case management hearing on 11 September 2023 at 9.30 am.

8.The proceeding be listed for hearing on 4 October 2023 at 10.15 am.

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

REASONS FOR JUDGMENT
(Revised from transcript)

YATES J:

1. On 14 July 2023, I made a number of orders in this proceeding including an order (Order 2) that the applicants’ application filed on 4 July 2023, the affidavit affirmed by Wong Kwok Keung on 29 June 2023 comprising 77 paragraphs, and exhibit WKK-1 referred to therein, be served on the respondent as soon as practicable and, in any case, at least 5 days before 9 August 2023.

2. Compliance with this order required personal service.  For the reasons explained in the evidence before me, the applicants have not been able to effect personal service of the documents on the respondent.  They now move ex parte on an unfiled (at the time of the hearing) interim application for an order for substituted service under r 10.24 of the Federal Court Rules 2011 (Cth).

3. Rule 10.24 provides:   

   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.

4. Based on the material that has been directed to my attention, particularly the correspondence from Patrick Mak & Tse referred to in Exhibit WKK-3 at pages 1 to 10, and in Exhibit NT-1 at pages 1 to 2, and having regard to the attempt at personal service referred to in paragraphs 1 to 4 of Ms Tsang’s affidavit of 8 August 2023, I am satisfied that it is not practicable to serve the documents referred to in Order 2 made on 14 July 2023 on the respondent personally.  For that reason, personal service should be dispensed with and substituted service should be ordered.

5. I am satisfied that the firm of solicitors known as Patrick Mak & Tse act generally for the respondent in relation to his bankruptcy, other than in respect of one matter that does not appear to be relevant to the present application, and that they appear to be in contact with him.

6. It would be appropriate therefore to grant the relief that is sought in prayers 3, 4, 5 and 6 of the interim application presently before the Court

7. Orders should be made accordingly.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates.

Associate:

Dated:       10 August 2023