Finstro Securities Pty Ltd v Tradecorp Leasing Ltd

Case •

[2025] NSWSC 1270

•

29 October 2025

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Finstro Securities Pty Ltd v Tradecorp Leasing Ltd [2025] NSWSC 1270
Hearing dates: 10 October 2025, further submissions 14 October 2025
Date of orders: 29 October 2025
Decision date: 29 October 2025
Jurisdiction:Equity - Commercial List
Before: Peden J
Decision:

See [39]

Catchwords:

PRIVATE INTERNATIONAL LAW – service – leave to proceed under r 11.8AA of UCPR – service in Hong Kong and the British Virgin Islands – conflict between Part 11 and Part 11A of the UCPR – whether the Hague Service Convention is an exclusive mechanism for service – exclusive jurisdiction clause – necessary or proper party – not a clearly inappropriate forum – leave granted

CIVIL PROCEDURE – default judgment – claim for debt under r 16.6 of UCPR – judgment awarded

Legislation Cited:

Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters arts 3-6, 10(a), 19

Uniform Civil Procedure Rules 2005 (NSW) rr 11.2, 11.4, 11.8AA, 11.8AC, 11A.2, 11A.4, 16.6, sch 6(b)(iii), 6(b)(iv), 6(h)(i)

Cases Cited:

AGC Capital Securities Pty Ltd v JaiJaifu Modern Agriculture (HK) Limited [2019] NSWSC 62

AIA Australia Ltd v Richards [2017] FCA 84

Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218

Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986

Gloucester (Sub-Holdings 1) Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1419

Gregory's Transport Pty Ltd v Ray's Haulage Pty Ltd [2008] NSWCA 333

Hutchinson v AD Securities America LLC [2021] NSWSC 1573

Independent Liquor & Gaming Authority v Melco Resorts & Entertainment Limited [2022] NSWSC 294

Jabiru Satellite Ltd v Societe Generale [2021] VSC 544

Petersen Energía Inversora, S.A.U. v Argentine Republic [2025] NSWSC 1071

Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144

Rio Tinto Shared Services Pty Ltd v English Datasystems LLC (2021) 65 VR 25

Sinopec International (Australia) Pty Ltd v Su [2019] NSWSC 269

Sloan Global Advisors Pty Ltd v Fenix Ltd [2025] NSWSC 1237

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

Water Splash, Inc v Menon 581 US (2017)

Category:Principal judgment
Parties: Finstro Securities (Plaintiff)
Tradecorp Leasing Ltd (First Defendant)
Tradecorp Global Holdings Ltd (Second Defendant)
Tradecorp International Pty Ltd (Third Defendant)
Shipping Container Rentals Pty Ltd (Fourth Defendant)
Representation:

Counsel:
T Bagley (Plaintiff)
C L W Street (Third and Fourth Defendants)

Solicitors:
Watson Mangioni Lawyers Pty Ltd (Plaintiff)
Colin Biggers & Paisley (Third and Fourth Defendants)
File Number(s): 2025/00119677
Publication restriction: Nil

JUDGMENT

  1. Finstro Securities Pty Ltd seeks leave to proceed under r 11.8AA(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) against two defendants located outside Australia, Tradecorp Leasing Ltd and Tradecorp Global Holdings. Finstro also seeks default judgment under r 16.6 of the UCPR against them.

  2. Finstro’s substantive claim concerns contracts dated 9 November 2017:

  1. First Class Securities Pty Ltd provided a secured loan facility to Tradecorp Leasing, on terms set out in a Facility Agreement.

  2. Tradecorp Leasing granted First Class Securities security for the loan under a Security Agreement.

  3. Tradecorp Global entered a Share Mortgage Deed, agreeing to mortgage all its shares in Tradecorp Leasing as security for First Class Securities for the loan.

  1. Tradecorp Leasing drew down $3,581,000 of the loan.

  2. On 29 March 2019, the third and fourth defendants, Tradecorp International Pty Ltd and Shipping Container Rentals Pty Ltd, entered a Corporate Guarantee Deed under which they agreed to guarantee Tradecorp Leasing’s obligations under the Facility Agreement.

  3. On 31 May 2019, Finstro took an assignment from First Class Securities of its interests in the Loan Facility Agreement, Security Agreement, Share Mortgage Deed and Corporate Guarantee Deed.

  4. On 7 December 2022, the loan became due and payable, with interest beginning to accrue.

  5. Between August and November 2024, Finstro made demands for repayment, however, the defendants have not repaid any outstanding principal and interest.

  6. At the hearing of Finstro’s amended notice of motion, Finstro and Tradecorp International and Shipping Container agreed that a statement by Finstro ought to be recorded:

Finstro Securities hereby waives as against the third and fourth defendants any estoppel which may arise from a default judgment obtained against the first and/or second defendants.

  1. On that basis, Tradecorp International and Shipping Container did not seek to be heard on Finstro’s motion.

  2. At the hearing, I requested that further submissions be supplied in respect of Finstro’s construction of the rules and service under the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention).

  3. As detailed below, I grant leave to Finstro to proceed under r 11.8AA of the UCPR and will enter default judgment against Tradecorp Leasing and Tradecorp Global.

Should Finstro be granted leave to proceed?

  1. Tradecorp Leasing and Tradecorp Global have not entered an appearance. Finstro therefore needs leave to proceed against them under r 11.8AA of the UCPR to proceed, which requires that:

  1. the defendant has been properly served, 

  2. the claim in the originating process falls within Sch 6 of the UCPR,

  3. there is a real arguable case, and

  4. this Court must not be a clearly inappropriate forum: AGC Capital Securities Pty Ltd v JaiJaifu Modern Agriculture (HK) Limited [2019] NSWSC 62 at [3] (Ward CJ in Eq, as the President then was).

Have the defendants been served?

  1. Finstro submitted the Summons and Commercial List Statement was served by express international post:

  1. On Tradecorp Leasing in Hong Kong on 2 May 2025.

  2. On Tradecorp Global in the British Virgin Islands on 17 June 2025.

  1. Finstro submitted this was service in accordance with Part 11 of the UCPR, relying particularly on r 11.8AC for the proposition that a document to be served overseas “need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected”. Thus, Finstro submitted that, so long as it served the defendants in accordance with the law of the country in which service occurred, it is not necessary to also comply with the approach found in Part 11A of the UCPR relating to service under the Hague Service Convention, which is relevant in Hong Kong and Britain.

  2. The Hague Service Convention was extended by the United Kingdom to the British Virgin Islands and Hong Kong with effect from 19 July 1970. By a note dated 10 June 1997, the People’s Republic of China declared that the Convention would apply to the Hong Kong Special Administrative Region with effect from 1 July 1997 and that the Government of the People’s Republic of China would assume responsibility for the international rights and obligations arising from the application of the Convention to Hong Kong: Gloucester (Sub-Holdings 1) Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1419 at [42] (White J, as his Honour then was). Contrary to its own declaration, the People’s Republic of China maintained the United Kingdom’s declaration in relation to Hong Kong which does not object to service pursuant to Article 10(a) of the Convention.

  3. In its later submissions, Finstro stated “proceedings can be validly served in countries that are signatories” to the Hague Service Convention “by following the process in Part 11 of the UCPR, as opposed to the process in Part 11A”.

  4. The primary issue is whether service under Part 11A (which incorporates the Hague Service Convention) operates to exhaustively and exclusively cover service, where the State of destination is a party to the Hague Service Convention, such that the operation of Part 11 of the UCPR is displaced. There are several reasons why I do not consider it is so.

  5. First, Part 11A expressly contemplates the interaction with other aspects of the UCPR equally capable of applying in States, that are parties to the Hague Service Convention. Rule 11A.2 provides that Part 11A “prevails to the extent of any inconsistency with any other provision of these rules”. The choice of the term “inconsistency” rather than “exclusion” ensures that only where Part 11A and relevantly Part 11 cannot operate concurrently, the former governs. However, this drafting also presupposes that, where the two Parts are capable of harmonious application, each continues to apply. This reading is confirmed by the permissive “may” contained in r 11A.4(1), which suggests that “the invocation of the formal mechanism under Arts 3-6 of the Hague Convention is discretionary”: Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218 at [20] (Gordon J) (Yellow Page Marketing).

  6. Secondly, Part 11 also contemplates application in accordance with the Hague Service Convention. Rule 11.2 states that Part 11 “does not require the leave of the Supreme Court for any service or other thing that may be effected or done under ... the Hague Convention or Part 11A” (emphasis added). Moreover, r 11.4(2) expressly contemplates that “this rule extends to originating process to be served outside Australia in accordance with the Hague Convention”. Both rules assume that Part 11 and the Hague Service Convention may operate together, not that the latter (as incorporated in Part 11A) has displaced the former.

  7. A further question therefore arises as to whether Part 11 is consistent with service under the Hague Service Convention in accordance with r 11A.2, as statute is to be interpreted harmoniously with Australia’s international obligations and with the comity of nations: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at 234.

  8. Rule 11.8AC provides that a “document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected”. The phrase “law of the country” cannot sensibly be confined to the municipal law of the State of destination, but must include the international obligations binding upon it including, where applicable, the Hague Service Convention. This was confirmed by Ball J (as his Honour then was) in Independent Liquor & Gaming Authority v Melco Resorts & Entertainment Limited [2022] NSWSC 294 at [53] in stating that “r 11.8AC is one of the rules that implements Australia’s obligations under the Hague Convention on Service”.

  9. As noted above, the Hague Service Convention prescribes a formal mechanism in Articles 3-6, which I accept is itself not an “exclusive” mechanism. This is because the Convention provides for “alternative means of service” which are “by no means a subordinate or subsidiary means of service to that specified” in Articles 3-6: Rio Tinto Shared Services Pty Ltd v English Datasystems LLC (2021) 65 VR 25 at [93] (Lyons J); Yellow Page Marketing at [20]. This should not be read as suggesting that compliance or consistency with the Hague Service Convention is optional or “facultative, not mandatory”: cf Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986 at [30]. The Hague Service Convention should instead be given full effect, because it would be “surprising” if rules such as the UCPR sought to “make more restrictive the manner in which a writ may effectively be served outside Australia than provided for in the Hague Convention itself”: Jabiru Satellite Ltd v Societe Generale [2021] VSC 544 at [46] (Delany J).

  10. Several examples of alternate means of service feature in the Hague Service Convention, two of which are of note here.

  1. Article 10(a) maintains “the freedom to send judicial documents, by postal channels, directly to persons abroad” which has been understood by the US Supreme Court and Australian courts as extending to service by judicial process: Water Splash, Inc v Menon 581 US (2017) at 12; AIA Australia Ltd v Richards [2017] FCA 84 at [13] (Allsop CJ) and cases cited therein. As explained above, neither Hong Kong nor the British Virgin Islands have made any reservation to Article 10(a).

  2. Article 19 of the Hague Service Convention substantively informs the application of r 11.8AC by providing that “to the extent that the internal law of a Contracting State permits methods of transmission, other than those provided for in the preceding Articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions”. Put differently, Article 19 preserves, rather than supplants, the local law of the State of destination.

  1. The above analysis aligns with Bell CJ’s recent observations in Petersen Energía Inversora, S.A.U. v Argentine Republic [2025] NSWSC 1071 at [98] that “[n]either the express terms of the Convention nor their necessary implication prohibit Contracting States from making provision in their internal law for other forms of service”. Thus, I accept that service under Part 11 of the UCPR may give effect to the Hague Service Convention, and is not inconsistent with Part 11A for the purposes of r 11A.2.

  2. In these proceedings, Finstro contended that Tradecorp Leasing and Tradecorp Global were served in accordance with the laws of Hong Kong and the British Virgin Islands, respectively, by express international post. Neither the affidavit of Calvin Cheuk Yin Chow nor Romauld Johnson gave evidence that Hong Kong or British Virgin Islands law permit postal service from abroad expressly for the purposes of Article 19 of the Convention. However, I accept that postal service from abroad is permitted by Article 10(a) of the Convention and so aligns with the evidence of the domestic laws of Hong Kong and the British Virgin Islands.

  3. For those reasons, I accept that both Tradecorp Leasing and Tradecorp Global have been properly served in accordance with rr 11.8AC and 11.4 of the UCPR.

Do Finstro’s claims come within Schedule 6 of the UCPR?

  1. I accept that Finstro’s claims against Tradecorp Leasing and Tradecorp Global fall within Schedule 6 of the UCPR.

  2. In respect of Tradecorp Leasing, clause 28.17 provides that the Facility Agreement, which binds Tradecorp Leasing, is “governed by and must be construed in accordance with the laws of New South Wales, Australia” and ensures that courts in New South Wales have “exclusive jurisdiction to settle any disputes arising out of or in connection with this agreement”. Thus, I accept that the claim against Tradecorp Leasing falls within Schedule 6(b)(iv).

  3. In respect of Tradecorp Global, Finstro recognised that the position “differs” because the Share Mortgage Deed between Finstro and Tradecorp Global identifies Hong Kong as the “exclusive jurisdiction”. However, it is nevertheless contended that, in accordance with Schedule 6(b)(iii) of the UCPR, the Share Mortgage Agreement was to be “part performed in Australia”, because it secures an underlying contractual obligation governed by the laws of New South Wales involving an Australian lender.

  4. This submission is difficult to accept without any attempt by Finstro to precisely identify what “performance” occurs in Australia. The underlying loan may be performed in Australia, but the Share Mortgage Deed does not clearly contain obligations performable in Australia. For example, delivering share certificates or registering a charge, would occur in Hong Kong, because Tradecorp Global, a British Virgin Islands company, has given security over its shares in Tradecorp Leasing, a Hong Kong company.

  5. Nevertheless, Finstro’s claim against Tradecorp Global may fall within Schedule 6(h)(i) which states that “when any person outside of Australia is … a necessary or proper party to a proceeding properly brought against another person served or to be served (whether within Australia or outside Australia) under any other provision of these rules”. As I have accepted that the claim brought against Tradecorp Leasing is properly brought in New South Wales, the question is whether Tradecorp Global constitutes a “necessary or proper party”.

  6. It is common in loan enforcement proceedings that the lender brings proceedings against both the principal debtor and the guarantor (or security provider), because the liability is coextensive. This fact makes Tradecorp Global a “proper party” in the sense that it allows the Court to grant effective relief and avoid the multiplicity of proceedings in different forums over the same underlying default. This view is supported by Clause 28.1(c) of the Share Mortgage Agreement, which states that “the Lender will not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction” (emphasis added) notwithstanding the exclusive jurisdiction clause designating Hong Kong. Thus, I accept that the claim against Tradecorp Global falls within sch 6(h)(i).

Does Finstro have a reasonably arguable case?

  1. On the material before me, I accept that Finstro has a reasonably arguable case against both Tradecorp Leasing and Tradecorp Global regarding the default of executed loan agreements.

Is this Court an inappropriate forum?

  1. I am satisfied that, as against Tradecorp Leasing, this Court is not a clearly inappropriate forum because of the exclusive jurisdiction clause referred to above: Hutchinson v AD Securities America LLC [2021] NSWSC 1573 at [7] (Ward CJ in Eq, as the President then was).

  2. Whether this Court is an inappropriate forum for the proceedings against Tradecorp Global is more complicated because the Share Mortgage Agreement specifies both that the governing law is Hong Kong (Clause 27) and that Hong Kong courts have exclusive jurisdiction (Clause 28.1(a)). However, the question before me does not require “a comparative judgment between the two forums”: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 558 (Mason CJ, Deane, Dawson and Gaudron JJ). Factors such as the underlying loan agreement being governed by the law of New South Wales, the potential multiplicity of proceedings in different forums, and Clause 28.1(c) permitting the lender to proceed “in any other courts with jurisdiction” support a finding that this Court is not clearly inappropriate.

  3. For those reasons, I grant leave to proceed against both Tradecorp Leasing and Tradecorp Global under r 11.8AA of the UCPR.

Should default judgment be entered against the defendants?

  1. Finstro also sought default judgment for a “debt” under r 16.6 of the UCPR, because the defendants have failed to file a Commercial List Response: see eg Sinopec International (Australia) Pty Ltd v Su [2019] NSWSC 269 at [38]-[40] (Hammerschlag J, as the CJ in Eq then was). I accept that the defendants are relevantly “in default”.

  2. Each of the elements contained in r 16.6(2) is satisfied for the claim for “debt” in accordance with the affidavit of Mr Swinton: Gregory's Transport Pty Ltd v Ray's Haulage Pty Ltd [2008] NSWCA 333, at [17], [18], [23] (Macfarlan JA, Allsop P and Campbell JA agreeing).

  1. First, the amount due to Finstro is $1,874,394.42.

  2. Secondly, no payments have been received or credits accrued to reduce the amount due.

  3. Thirdly, Mr Swinton’s source of knowledge results from his position as Head of Risk and Compliance at Finstro, which has ensured his familiarity with its “books and records” and because he is responsible for the proceedings and the debt underpinning these proceedings.

  4. Fourthly, Mr Swinton canvasses the amount claimed by way of interest as: (i) default interest accrued in the sum of $86,903.77; and (ii) unpaid interest payments accrued in the sum of $273,409.59.

  5. Fifthly, costs are claimed in the amount of $1,596 and no amount is claimed for filing or service: see Sloan Global Advisors Pty Ltd v Fenix Ltd [2025] NSWSC 1237 at [22].

  1. Sixthly, the assessment of service is reflected in my reasons above.

Orders

  1. It is appropriate to make the following orders:

  1. Pursuant to r 11.8AA of the UCPR, grant leave to Finstro Securities Pty Ltd to proceed against Tradecorp Leasing Ltd and Tradecorp Global Holdings Ltd.

  2. Pursuant to r 16.6 of the UCPR, judgment against Tradecorp Leasing Ltd and Tradecorp Global Holdings Ltd comprising:

  1. $1,603,633.84 as the current amount owing.

  2. $273,409.59 as the amount in unpaid interest payments.

  3. $86,903.77 as the default interest claimed.

  1. Costs awarded in the amount of $1,596.

**********

Amendments

29 October 2025 - Case citation amendment.

Decision last updated: 29 October 2025

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