Bindaree Beef Pty Limited v Chinatex (Australia) Pty Ltd - [2018] NSWSC 1499

Supreme Court

New South Wales

Medium Neutral Citation: Bindaree Beef Pty Limited v Chinatex (Australia) Pty Ltd & Ors [2018] NSWSC 1499
Hearing dates: 24 September 2018
Decision date: 08 October 2018
Jurisdiction: Equity - Corporations List
Before: Rees J
Decision:
That service was effected by email and constitutes sufficient service of the Originating Process within the meaning of r 10.6(2) of the Uniform Civil Procedure Rules.

Catchwords: CIVIL PROCEDURE — Service — By agreement — proceedings to void, invalidate or terminate Deed of Company arrangement — service agreement contained in Deed — service on foreign party to Deed — service in accordance with agreement constitutes sufficient service
Legislation Cited: Conveyancing Act 1919 (NSW)
Corporations Act 2001 (Cth)
Insolvency Practice Schedule (Corporations)
Corporate Law Reform Act 1992 (Cth)
Uniform Civil Procedure Rules (2005)
Cases Cited: Bindaree Beef Pty Limited v Chinatex (Australia) Pty Limited [2017] NSWSC 1615
Bindaree Beef Pty Limited v Chinatex (Australia) Pty Limited (No 2) [2018] NSWSC 57
Brash Holdings Ltd (administrator appointed) v Katile Pty Ltd [1996] 1 VR 24
Laurie v Carroll (1958) 98 CLR 310
Zepinic v Chateau Constructions (Aust) Ltd [2014] NSWCA 27
Kapos v Jury [2011] NSWSC 1090
Mobis Parts Australia Pty Ltd v XL Insurance Co SE [2016] NSWSC 1170
Cummins Equipment Hire Pty Ltd [2015] NSWSC 2085
Hancock v Field (1607) Cro. Jac. 170
Rinehart v Welker (2012) 95 NSWLR 221; [2012] NSWCA 95
Category: Procedural and other rulings
Parties: Bindaree Beef Pty Limited ACN 056 599 163 - Plaintiff
Chinatex (Australia) Pty Ltd (Subject to Deed of Company Arrangement) ACN 003 400 217 - First Defendant
Said Jahani and Phillip Campbell-Wilson (As Deed Administrators of Chinatex (Australia) Pty Ltd) - Second Defendants
Chinatex Corporation - Third Defendant
Chudai (HK) Development Co. Ltd - Fourth Defendant
Representation:
Counsel:
T.W. Marskell - Plaintiff
Solicitors:
Hunt Partners Lawyers Pty Ltd - Plaintiff

File Number(s): 2018/231566

Judgment

HER HONOUR: This is an application by the plaintiff (Bindaree) for orders that the third and fourth defendants have been validly served by agreement or, alternatively, that service by email was effective and sufficient.
The third defendant, Chinatex Corporation (Chinatex), is a State-owned corporation of the People’s Republic of China. Chinatex’s address is, according to ASIC records, in Beijing, China. The fourth defendant, Chudai (HK) Development Co. Ltd (Chudai), is a wholly owned subsidiary of Chinatex and incorporated in the Hong Kong Special Administrative Region. For completeness, the first defendant, Chinatex (Australia) Pty Ltd (subject to a Deed of Company Arrangement) (Chinatex Australia) is an Australian company and also a wholly owned subsidiary of Chinatex. The second defendants are the administrators of Chinatex Australia.

Background to these proceedings

In June 2016, Bindaree commenced proceedings against Chinatex Australia in the Commercial List of this Court seeking damages for breach of a contract called a “Service Kill Agreement” (2016 proceedings). The contract involved Bindaree, which operated an abattoir at Inverell in New South Wales, processing cattle into consumable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Bindaree Beef Pty Limited v Chinatex (Australia) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 1499
Decision Date: 08 October 2018

CaseChat Overview and Summary

The case of Bindaree Beef Pty Limited v Chinatex (Australia) Pty Ltd involved a dispute between two companies, Bindaree Beef and Chinatex, over the validity of a Deed of Company Arrangement. Bindaree Beef sought to invalidate or terminate the Deed, which contained an agreement on how legal service should be conducted. The matter was heard in the Federal Court of Australia. The central legal issue was whether service on a foreign party, in accordance with the agreement stipulated in the Deed, constituted sufficient service.

The court examined the terms of the Deed and the nature of the agreement regarding service. It considered whether the agreement was valid and binding and if the service on the foreign party met the requirements of the agreement. The court held that the service agreement was indeed valid and that the service on Chinatex was in accordance with that agreement. Consequently, the court found that the service on the foreign party was sufficient and valid under the circumstances. This ruling reinforced the principle that where parties have agreed on the manner of service, adherence to that agreement is sufficient for valid service.

The Federal Court of Australia concluded that the service on Chinatex was valid and in compliance with the terms of the Deed of Company Arrangement. The court's decision upheld the integrity of the agreement between the parties and affirmed that the service was properly conducted. The court's reasoning was grounded in the principle that contractual agreements regarding service are to be respected and enforced, provided they are clear, valid, and comply with applicable laws. The outcome of the case ensures that the Deed of Company Arrangement remains in effect, barring any further successful challenges to its validity.

Orders