B2Binsider Pte Ltd v Fantech Capital BV

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

B2Binsider Pte Ltd v Fantech Capital BV [2024] FedCFamC2G 426

File number(s): SYG 1540 of 2023
Judgment of: JUDGE GIVEN
Date of judgment: 10 May 2024
Catchwords: PRACTICE AND PROCEDURE – Application for substituted service of documents to be served outside of Australia – how Federal Court Rules applied – whether necessary to attempt service under Hague Convention prior to seeking orders for substituted service – where respondents have received documents – whether orders deeming service appropriate
Legislation:

Competition and Consumer Act 2010 (Cth) s 5, sch 2 ss 18, 86, 138A

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06, 6.14, sch 1 item 6

Federal Court Rules 2011 (Cth rr 10.24, 10.41, 10.42, 10.43, 10.44, 10.45 10.48, 10.49 10.52

Cases cited:

Australian Competition and Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035

Australian Information Commission v Facebook Inc [2020] FCA 531; 144 ACSR 88

Bray v F Hoffman- La Roche Ltd (2003) 200 ALR 607

Cmr of Taxation v Oswal [2012] FCA 1507; 91 ATR 684

Cmr of Taxation v Zeitouni (2013) 306 ALR 603

Commissioner of Taxation v Oswal [2012] FCA 1507

Connelly (liquidator), in the matter of CIMC Rolling Stock Australia Pty Ltd (in liq) v One Rail Australia (FLA) Pty Ltd (No 3) [2021] FCA 1183

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

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124

Laurie v Carroll (1958) 98 CLR 310

Noco Company v Hong Jong Haowei Technology co, Ltd [2023] FCA 533

Park (as trustee of the bankrupt estate of Tschannen) v Tshannen and Another (2016) 341 ALR 452

Re Deposit and Investment Co Ltd (1991) 30 FCR 463

Southwell v Maladina [2002] FCA 802; 194 ALR 51

Voth v Manildra Flour Mills Pty Ltd (1990) 97 ALR 124

Wilding v Bean [1891] 1 QB 100
Division: Division 2 General Federal Law
Number of paragraphs: 49
Date of hearing: 6 May 2024
Place: Sydney
Counsel for the Applicants: A Gandar
Solicitor for the Applicants: Kerrs Law Pty Ltd
Solicitor for the Respondents: No appearance

ORDERS

SYG 1540 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

B2B INSIDER PTE LTD

First Applicant

DAVID WOOD

Second Applicant
AND:

FANTECH CAPITAL BV

First Respondent

WIM PONNET

Second Respondent

TERRY DOWNING (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

JUDGE GIVEN

DATE OF ORDER:

6 MAY 2024

THE COURT ORDERS THAT:

1.Orders 1 to 8 (inclusive) of the Orders made on 30 November 2023 are vacated.

2.Pursuant to r 10.44 of the Federal Court Rules 2011 (Cth) (FCA Rules) the applicants have leave to serve the Documents (as defined in the notation below), other than the originating application (in respect of which leave is not required), outside Australia.

3.Pursuant to r 10.24 of the FCA Rules, the applicants are authorised to…

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Details
Case
[2024] FedCFamC2G 426
Decision Date

CaseChat Overview and Summary

In the matter of B2Binsider Pte Ltd v Fantech Capital BV, the Federal Court was tasked with addressing an application for substituted service of documents to be served outside of Australia. The primary dispute involves the applicants, B2Binsider Pte Ltd, seeking to serve documents on the third respondent, who is said to be a resident of England. The applicants argue that attempts to serve the respondents directly have been unsuccessful, necessitating substituted service under the Federal Court Rules 2011 (Cth) (FCA Rules). The Court had to determine whether it was necessary to attempt service under the Hague Convention prior to seeking orders for substituted service and whether the orders deeming service appropriate were justified.

The legal issues at hand primarily revolved around the procedural requirements for substituted service under the Federal Court Rules and the applicability of the Hague Convention in this context. The applicants contended that the Federal Court Rules should be applied directly for substituted service, without the necessity of first attempting service under the Hague Convention. They argued that the third respondent had received documents, which justified the use of substituted service. The Court needed to weigh the procedural rules against the practicalities of serving documents on an overseas respondent and determine whether the applicants had satisfied the requisite conditions for substituted service under the FCA Rules.

The Court found that the applicants had sufficiently demonstrated the need for substituted service by showing that the respondents had received documents, thereby negating the necessity to first attempt service under the Hague Convention. The Court also noted the error in the earlier order and rectified it by confirming that the substituted service orders should indeed be made in accordance with the Federal Court Rules. The applicants had met the criteria for substituted service, as they had made reasonable attempts to serve the respondents directly and had provided evidence that the respondents had received documents related to the proceedings. Consequently, the Court deemed the orders for substituted service appropriate.

In conclusion, the Court granted the application for substituted service of documents to be served outside of Australia. The orders were made in accordance with the Federal Court Rules, and the Court deemed the substituted service appropriate given the circumstances. The Court's decision was based on the applicants' compliance with procedural requirements and the practical need to serve documents on the overseas respondents.

Orders

Orders of the court

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Background

Background to the litigation

The third respondent is said by the SOC to be resident in England. BACKGROUND These proceedings first came before the Court for directions on 2 November 2023, on which occasion the first to third respondents were not present at Court, nor was there any appearance for them. Orders were made on that occasion adjourning the matter to later in November for further directions, in the anticipation that the absent respondents may be served in the interim. On 30 November 2023, the Court (erroneously) made orders for substituted service of the first to third respondents, not by reference to the relevant provisions of the Federal Court Rules 2011 (Cth) (FCA Rules). When the Court later apprehended that error, and brought it to the applicants’ attention, the Application came to be filed. In support of the Application, the applicants rely on three Affidavits deposed by their solicitor, Mr Aaron Edmonds, being Affidavits affirmed on each of:(a)29 November 2023 (First Edmonds Affidavit);(b)1 December 2023 (Second Edmonds Affidavit); and (c)21 March 2024, being an Affidavit relevantly addressing matters required by r 10.43(3) of the FCA Rules (Third Edmonds Affidavit). Tendered today was a bundle of relevant emails of a range of dates spanning, November and December of 2022, which emails are said to relevantly underpin parts of the SOC (marked Exhibit “1A”). An additional email, which had been omitted as an annexure to the Second Edmonds Affidavit was marked Exhibit “2A”. By the SOC, the applicants allege that various representations were made by the emails which form “Exhibit 1A”. In essence, those emails went to proposing a particular business venture which involved an exclusive opportunity to acquire 100% of Major League Rugby in North America (MLR League), and the majority interest of each of the current and future franchises for that sport (exclusive deal representation). The venture was proposed to be funded through a particular funding proposal (funding representation). The applicants allege that, to the extent that they made representations as to future matters, the respondents had no reasonable grounds for making the exclusive deal representation and funding representation (together, the representations), and that the representations were false. In support of this, the applicants claim that (unbeknownst to the second applicant) a deadline for funding of the funding representation expired on 20 December 2022. This is said to have had the effect that the funding proposal for the exclusive deal was no longer viable, such that the representations were not viable. The representations are therefore said to have been misleading and deceptive for the purposes of the ACL. APPLICABLE RULES Rule 1.06(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) relevantly provides as follows: 1.06 Application(1) It is intended that the practice and procedure of the Court in general federal law proceedings be governed principally by these Rules.(2) However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Federal Court (Criminal Proceedings) Rules 2016 in whole or in part and modified or dispensed with, as necessary.(3) Without limiting subrule (2), the provisions of the Federal Court Rules set out in Schedule 1, apply, with necessary changes, to general federal law proceedings.Note: These Rules have effect subject to any provision made by an Act, or by rules or regulations under an Act, with respect to the practice and procedure in particular matters (see subsection 217(2) of the Act).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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