Heenan (Receiver), in the matter of Ruby Apartments Pty Ltd (in liq) v Ralan Paradise No. 1 Pty Ltd (in liq)

[2020] FCA 1878

FEDERAL COURT OF AUSTRALIA

Heenan (Receiver), in the matter of Ruby Apartments Pty Ltd (in liq) v Ralan Paradise No. 1 Pty Ltd (in liq) [2020] FCA 1878  

File number:

QUD 159 of 2020

Judgment of:

REEVES J

Date of judgment:

24 December 2020

Catchwords:

PRACTICE AND PROCEDURE – application for orders deeming service of originating documents under rr 10.23 and 10.48 of the Federal Court Rules 2011 (Cth) – where there are 240 named defendants – where at least some of the defendants reside in the People’s Republic of China – whether it is not practicable to effect personal service on the relevant defendants – whether it can be inferred, on the balance of probabilities, that the originating documents have been brought to the attention of the relevant defendants

Legislation:

Corporations Act 2001 (Cth)

Federal Court Rules 2011 (Cth)

Cases cited:

Australian Competition and Consumer Commission v Safety Compliance Pty Ltd (in liq) (No 3) [2016] FCA 303

Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286

British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065

Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500

Federal Commissioner of Taxation v Zeitouni (2013) 306 ALR 603; [2013] FCA 1011

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

Ross v Cotter [2015] FCA 310

Statewide Secured Investments Pty Ltd v Tarrant [2011] FCA 1067

Division:

General Division

Registry:

Queensland

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

38

Date of last submissions:

9 November 2020

Date of hearing:

Determined on the papers

Counsel for the Plaintiff:

Mr C Wilkins

Solicitor for the Plaintiff:

HopgoodGanim

ORDERS

QUD 159 of 2020

IN THE MATTER OF RUBY APARTMENTS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 624 312 812

BETWEEN:

TIMOTHY JOSEPH HEENAN, JASON MARK TRACY AND SALVATORE ALGERI AS JOINT AND SEVERAL RECEIVERS OF RUBY APARTMENTS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 624 312 812

Plaintiffs

AND:

RALAN PARADISE NO. 1 PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)
ACN 602 658 211

First Defendant

RUBY COLLECTION MANAGEMENT PTY LTD (IN LIQUIDATION) ACN 624 312 947

Second Defendant

RUBY APARTMENTS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)
ACN 624 312 812 (and others named in the Schedule)

Third Defendant

ORDER MADE BY:	REEVES J
DATE OF ORDER:	24 DECEMBER 2020

THE COURT ORDERS THAT:

1.The 158^th defendant cease to be a party.

2.The 204^th defendant’s name be amended to “Louise Joy McKinnon”.

3.The originating application, supporting affidavit of Timothy Heenan and affidavit of Tony Rossiter are deemed to have been served on the following defendants on the following dates:

(a)for the 162^nd, 209^th and 232^nd defendants, on 21 July 2020.

(b)for the 13^th defendant, on 29 July 2020.

(c)for the 81^st and 82^nd defendants, 11 August 2020.

(d)for all other defendants (apart from the 5^th, 6^th, 7^th, 8^th, 9^th, 12^th, 14^th, 15^th, 16^th, 20^th, 21^st, 22^nd, 29^th, 33^rd, 35^th, 36^th, 37^th, 41^st, 42^nd, 43^rd, 44^th, 49^th, 50^th, 51^st, 56^th, 57^th, 58^th, 59^th, 60^th, 67^th, 69^th, 71^st, 86^th, 89^th, 90^th, 96^th, 97^th, 98^th, 99^th, 100^th, 101^st, 102^nd, 106^th, 107^th, 108^th, 116^th, 118^th, 119^th, 122^nd, 125^th, 126^th, 129^th, 132^nd, 133^rd, 136^th, 138^th, 139^th, 145^th, 146^th, 148^th, 149^th, 154^th, 169^th, 171^st, 184^th, 193^rd, 198^th and 199^th defendants), 30 June 2020.

4.The interlocutory application filed 4 June 2020 is dismissed.

5.Costs are reserved.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1. This is a complicated application for deemed service under rr 10.23 and 10.48 of the Federal Court Rules 2011 (Cth) (the Rules) and a number of incidental orders. It is complicated by the fact that there are 240 named defendants to the proceeding. The application is brought by the joint and several receivers and managers of the property of Ruby Apartments Pty Ltd: Mr Timothy Heenan, Mr Jason Tracy and Mr Salvatore Algeri (together, the Receivers).

   FACTUAL CONTEXT

2. Ruby Apartments carried on business letting residential apartments in a building located in Surfers Paradise in South East Queensland (the Surfers Paradise property). It was placed in administration on 31 July 2019 and the Receivers were privately appointed the following day.

3. The Receivers caused Ruby Apartments to continue trading until late 2019 when the business was sold to the 4^th defendant, Ruby Management Surfers Paradise Pty Ltd. That sale was completed on 21 January 2020. As a consequence of continuing to trade, the Receivers hold $1.8 million in trust which has to be distributed in varying amounts between the Receivers and the defendants.

4. As there are issues concerning how those distributions are to be made, in their originating application the Receivers have sought orders under s 424 of the Corporations Act 2001 (Cth). Each of the defendants was joined on the basis that they hold an interest in the funds held by the Receivers. They variously comprise owners, tenants and paid guests of the apartments in the building at the Surfers Paradise property (see at [21] below), some service providers (the 2^nd and 4^th defendants) and Ruby Apartments itself (the 3^rd defendant). A schedule annexed to the affidavit made by Mr Heenan in support of the Receivers’ originating application reveals that at least 16 of the defendants reside on the mainland of the People’s Republic of China (the PRC), or in Hong Kong.

5. By interlocutory application, the Receivers have sought several orders as follows:

   1.An order under Federal Court Rules 2011, r 9.08 that the 58^th and 158^th defendants cease to be parties to this proceeding.

   2. An order under Federal Court Rules 2011, r 8.21 that the 204^th defendant’s name be amended to “Louise Joy McKinnon”.

   3. An order under Federal Court Rules 2011, r.10.23 that the originating process and supporting affidavits of Mr Heenan and Mr Rossiter are taken to have been served on the 5^th to 240^th defendants on the following dates:

   (a)For the 162^nd, 209^th and 232^nd defendants - on 21 July 2020.

   (b)For the 13^th defendant - on 29 July 2020.

   (c)For the 5^th, 81^st, 82^nd, 116^th, 133^rd, 148^th, 169^th and 184^th defendants - on 11 August 2020.

   (d)For all other defendants (apart from the 1^st to 4^th defendants) - on 30 June 2020.

   4.Such further or other orders as may be appropriate.

   5.Costs reserved.

   (Emphasis in original)

6. It is relevant to note the Receivers had previously filed an interlocutory application seeking orders for substituted service under r 10.24. That application was abandoned in favour of the present application.

7. Some of these orders may be disposed of briefly. First, due to slight variations in how the 158^th defendant’s name was recorded in the books of Ruby Apartments, that defendant has erroneously been joined to these proceedings as both the 158^th and the 192^nd defendant. I therefore consider it appropriate that the 158^th defendant cease to be a party. The converse situation existed with respect to the 58^th and 129^th defendants, who the Receivers originally understood to be the same person. However, they have subsequently established that those defendants are in fact brothers. I will therefore make proposed Order 1 in respect of the 158^th defendant, but not the 58^th.

8. Turning next to proposed Order 2, the 204^th defendant’s name has been spelt incorrectly in the first and second schedules of the originating application. That is, her given name is recorded as “Loiise” rather than “Louise”. That error appears to be a typographical error and I will therefore make the order sought with respect to that defendant.

9. Next, I record that I do not consider it necessary to make proposed Order 3 above in respect of the 1^st to 4^th defendants as they have, subsequent to the present application being filed, agreed to accept service by email as allowed under r 10.28 of the Rules.

10. Further, I also do not consider it is necessary to make that order in relation to the 7^th, 8^th, 9^th, 12^th, 14^th, 15^th, 16^th, 20^th, 21^st, 22^nd, 29^th, 33^rd, 35^th, 36^th, 37^th, 41^st, 42^nd, 43^rd, 44^th, 49^th, 50^th, 51^st, 56^th, 57^th, 58^th, 59^th, 60^th, 67^th, 69^th, 71^st, 86^th, 89^th, 96^th, 97^th, 98^th, 99^th, 100^th, 106^th, 107^th, 108^th, 116^th, 118^th, 119^th, 122^nd, 125^th, 126^th, 129^th, 132^nd, 133^rd, 136^th, 138^th, 139^th, 145^th, 146^th, 148^th, 149^th, 154^th, 169^th, 171^st, 193^rd or 199^th defendants because service is deemed to have been effected on those defendants under r 10.11 by virtue of the notice of appearance they filed subsequent to the filing of the present application.

11. The same applies to the 6^th, 90^th, 101^st, 102^nd and 198^th defendants by virtue of the notice of appearance they have since filed.

12. Finally, because of the following set of circumstances, I consider it is necessary to exclude the 5^th and 184^th defendants from the deemed service order sought in proposed Order 3 above. On 30 June 2020, the 5^th to 240^th defendants were sent an email containing a hyperlink to download documents, including the originating process and the supporting affidavits of Mr Heenan and Mr Tony Rossiter (the originating documents). On 18 July 2020, the legal representative for the 5^th, 81^st, 82^nd and 184^th defendants requested that a hard copy of that email be posted to those defendants at specified addresses within the PRC. That email was posted, by express international post, through Australia Post on 28 July 2020. As at 19 August 2020, the Australia Post website recorded that delivery of the hardcopy email to the 5^th defendant had not occurred as it was being held by customs in the PRC and that delivery to the 184^th defendant had been attempted but had not in fact occurred. For these reasons, I consider any application in respect of those two defendants ought to be deferred until such time as the Receivers can provide evidence that delivery of the relevant documents to them has been duly effected.

    RELEVANT PRINCIPLES

13. The following principles are relevant to proposed Order 3 above as it applies to the remainder of the defendants. First, the originating documents ought to be served personally on each defendant to a proceeding (r 8.06) by leaving the document with that individual (r 10.01). However, where it is not practicable to effect personal service on a person, a party may apply for orders deeming service on that person. Rule 10.23, which applies to service on a person in Australia, provides:

    A party may apply to the Court, without notice, for an order that a document is taken to have been served on a person on a date mentioned in the order if:

    (a)it is not practicable to serve a document on the person in a way required by these Rules; and

    (b)the party provides evidence that the document has been brought to the attention of the person to be served.

    (Note omitted)

14. Secondly, although the Receivers have applied for orders under r 10.23 only, as mentioned above, several of the defendants reside in the PRC. In that situation, where service is to be effected outside Australia, the party effecting service must comply with the requirements of Division 10.4 of the Rules. In particular, under r 10.43(2), the leave of the Court is required to serve a document on a person in a foreign country in accordance with the “Hague Convention” or the law of the foreign country concerned. The “Hague Convention” referred to in that rule is the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Convention), to which the PRC is a party. As such, service on its residents ordinarily ought to be effected in accordance with the articles of the Convention and Division 10.6 of the Rules, which sets out the process for effecting service in a Convention country where leave is granted under r 10.43.

15. However, as with domestic service, parties may apply under r 10.48 for orders deeming service on a person in a foreign country. That rule is in substantially the same terms as r 10.23 set out above with the exception that r 10.48(a) requires the party to demonstrate that “it is not practicable to serve the document on the person in a foreign country in accordance with a convention, the Hague Convention or the law of a foreign country” (emphasis added). As such, the authorities applicable to r 10.23 are, for the most part, equally applicable to r 10.48.

16. Thirdly, the word “practicable” has a wide meaning which depends on the nature of the particular proceedings, including the relief sought and the requirement that litigation be progressed quickly and efficiently (see Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286 at [11]-[12] and Ross v Cotter [2015] FCA 310 at [1]). Personal service need not be impossible or futile to be “not practicable” (see Federal Commissioner of Taxation v Zeitouni (2013) 306 ALR 603; [2013] FCA 1011 at [66] and the cases cited therein)).

17. Rather, rr 10.23 and 10.48 are wide enough to capture circumstances where further attempts at service would not be “sensible or realistic”, even if possible or feasible (see Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124 at [14]; Statewide Secured Investments Pty Ltd v Tarrant [2011] FCA 1067 at [9]; British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065 (British American Tobacco) at [28]-[29]; Australian Competition and Consumer Commission v Safety Compliance Pty Ltd (in liq) (No 3) [2016] FCA 303 at [8] and Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10]).

18. In British American Tobacco, Dodds-Streeton J observed (at [46]):

    There is … a distinction between, on the one hand, evidence that a document has been brought to a person’s attention and, on the other hand, evidence that the person accorded it attention or acknowledged it. In my view, r 10.23(b) does not require the latter. Such a requirement would materially reduce the ambit and efficacy of the provision for deemed service, which is characteristically invoked precisely because service is being evaded or is otherwise difficult …

19. Her Honour concluded (at [50]):

    … where there is evidence of actions, steps and circumstances which alone or in combination support, on the balance of probabilities, an inference that the documents have been brought to the relevant person’s attention, the requirement in r 10.23(b) will be satisfied.

    CONSIDERATION

20. As mentioned already, on 30 June 2020, the 5^th to 240^th defendants were sent an email (the 30 June email) containing a hyperlink to the originating documents. That email requested that each defendant confirm their account details and asked for confirmation that the email had been read, in the form of a “read receipt”. With the exception of the defendants mentioned at [28] below, the lawyer for the Receivers, Mr Jess Owen, deposed that he received confirmation that the 30 June email had been delivered to the 5^th to 240^th defendants. He also deposed that he had been informed that a number of the defendants spoke Mandarin. Consequently, he arranged for a translator certified by the National Accreditation Authority for Translators and Interpreters to translate the correspondence into Mandarin, a copy of which was attached to the 30 June email. In another affidavit, Mr Owen deposed that, as various international email servers and websites could not be accessed from within the PRC due to government restrictions, he had made arrangements with a lawyer in the PRC who confirmed she was able to access and download the documents from the hyperlink provided in the 30 June email. The Receivers relied on these facts in asserting that the documents had been provided to, and were accessible by, the defendants by way of the 30 June email.

21. The email addresses for the defendants were drawn from the following sources:

    (a)For the 5^th to 200^th defendants (the apartment owners) – a communications schedule recording the email addresses for owners of apartments in the Surfers Paradise property;

    (b)For the 201^st to 235^th defendants (the guests) – a schedule prepared by the Receivers based on refund requests completed by those defendants; and

    (c)For the 236^th to 240^th defendants (the tenants) – a schedule prepared by the Receivers based on tenancy forms received from those defendants.

22. The Receivers contended that service ought to be deemed to have been effected on the 55^th, 85^th, 151^st, 152^nd, 202^nd, 204^th, 205^th, 212^th, 213^th, 214^th, 217^th, 222^nd, 227^th, 229^th, 231^st, 235^th, 238^th, 239^th and 240^th defendants because, between 30 June 2020 and 21 July 2020, those defendants confirmed their account details as requested. Accordingly, they contended it should therefore be inferred that those defendants received the 30 June email.

23. With respect to the 85^th, 128^th, 206^th and 232^nd defendants, the Receivers submitted that, between 30 June 2020 and 2 August 2020, those defendants variously sent emails to the Receivers’ legal representatives seeking further information. That being so, they contended it should be inferred that those defendants also received the 30 June email.

24. Between 30 June 2020 and 2 July 2020, the 68^th, 75^th, 76^th, 77^th, 79^th, 80^th, 85^th, 111^th, 167^th, 201^st, 208^th, 219^th and 221^st defendants sent “read receipts” in response to the 30 June email confirming it had been received. The Receivers contended it should be inferred that those defendants sent the read receipts because they had received the 30 June email.

25. On 8 July 2020, the lawyer for the Receivers received two emails, purportedly on behalf of 37 of the defendants who are also apartment owners. The defendants mentioned in each of those emails included the 10^th, 18^th, 19^th, 26^th, 27^th, 38^th, 52^nd, 87^th, 104^th 134^th, 172^nd, 174^th, 175^th, 182^nd and 189^th defendants. Those emails were responsive to the 30 June email and the Receivers therefore contended it should be inferred those defendants had received the originating documents.

26. With respect to the 104^th defendant, William Roberts Lawyers, who were ultimately instructed by those defendants who filed the notices of appearance at [10] and [11] above, informed the Receivers that it had previously been instructed by the 104^th defendant but those instructions had since been withdrawn. As a result, the 104^th defendant was not included in either notice of appearance. Nonetheless, the Receivers contended it could be inferred that he had received the 30 June email as he had initially provided instructions to William Roberts Lawyers.

27. The 11^th, 17^th, 23^rd, 24^th, 25^th, 28^th, 30^th, 31^st, 32^nd, 34^th, 39^th, 40^th, 45^th, 46^th, 47^th, 48^th, 53^rd, 54^th, 61^st, 62^nd, 63^rd, 64^th, 65^th, 66^th, 70^th, 72^nd, 73^rd, 74^th, 78^th, 83^rd, 84^th, 88^th, 91^st, 92^nd, 93^rd, 94^th, 95^th, 103^rd, 105^th, 109^th, 110^th, 112^th, 113^th, 114^th, 115^th, 117^th, 120^th, 121^st, 123^rd, 124^th, 127^th, 130^th, 131^st, 135^th, 137^th, 140^th, 141^st, 142^nd, 143^rd, 144^th, 147^th, 150^th, 153^rd, 155^th, 156^th, 157^th, 159^th, 160^th, 161^st, 163^rd, 164^th, 165^th, 166^th, 168^th, 170^th, 173^rd, 176^th, 177^th, 178^th, 179^th, 180^th, 181^st, 183^rd, 185^th, 186^th, 187^th, 188^th, 190^th, 191^st, 192^nd, 194^th, 195^th, 196^th, 197^th, 200^th, 203^rd, 207^th, 210^th, 211^th, 215^th, 216^th, 218^th, 220^th, 223^rd, 224^th, 225^th, 226^th, 228^th, 230^th, 233^rd, 234^th, 236^th and 237^th defendants are variously apartment owners, guests and tenants of Ruby Apartments (see at [21] above). The Receivers contended it should be inferred that those defendants received the 30 June email because:

    (a)for those defendants who were apartment owners, the 30 June email was sent to the email address which those apartment owners had previously used to correspond with the Receivers;

    (b)for those defendants who were guests, the 30 June email was sent to the email address each guest provided in a refund request form issued by the Receivers;

    (c)for those defendants who were tenants, the 30 June email was sent to the email address each tenant provided in a tenancy form issued by Ruby Apartments.

1. The Receivers initially received a “failed delivery” notification with respect to the 30 June email that was sent to the 162^nd, 209^th and 232^nd defendants. Alternative email addresses were subsequently obtained for those defendants and a second email containing a link to the originating documents was sent on 21 July 2020. The Receivers received confirmation in the form of a delivery receipt that the second email had been delivered to the newly obtained email addresses and contended that it could therefore be inferred those defendants had in fact received the second email. They submitted that service on those defendants therefore ought to be deemed to have occurred on 21 July 2020. As already mentioned at [23] above, the 232^nd defendant has also since communicated with the Receivers.

2. A failed delivery notification was also received with respect to the 13^th defendant. On 22 July 2020, that defendant contacted the Receivers and requested that material in relation to these proceedings be mailed to an address in New South Wales. The Receivers did so and, according to the Australia Post website, printed copies of the 30 June email and originating documents were delivered to the defendant on 29 July 2020. The Receivers therefore contended that service ought to be deemed to have been effected on that defendant on that date.

3. As already mentioned above (see at [12]), a hard copy of the 30 June email was also posted to the 81^st and 82^nd defendants at specified addresses in the PRC. The Australia Post website records that delivery to those defendants had occurred by 11 August 2020 and the Receivers contended an inference ought to be drawn that those defendants received the documents on that date.

4. There are, as mentioned above, 240 named defendants to this proceeding, at least some of whom reside in the PRC. Mr Owen deposed in his affidavit that, based on previous experience, he estimated the cost of service on those defendants in the PRC would be approximately $700 per person. Accordingly, the Receivers claimed that significant costs would be incurred in effecting personal service on each of those defendants, which costs would necessarily be deducted from the fund held by the Receivers thereby reducing the distributions available to the defendants.

5. In this respect, I interpose to note that, due to the Corona Virus Disease 2019 (COVID-19) pandemic, personal service on those defendants located in the PRC, or in Hong Kong and, to a lesser extent, some parts of Australia, is likely to be difficult.

6. For these reasons, I am satisfied that there are costs and logistical impediments to effecting personal service on many, if not all, of the defendants. While those impediments do not make it impossible to effect service, I am satisfied that, in the circumstances outlined above, it would not be sensible or practicable for the Receivers to continue attempting to effect personal service as required under the Rules.

7. The key issue for consideration is, therefore, whether I am satisfied that the Receivers have provided sufficient evidence that the originating documents have been brought to the attention of each of the defendants to which this application relates.

8. Without repeating the assertions made above, I agree with the Receivers’ contentions regarding the inferences that can be drawn with respect to those defendants mentioned at [22] to [24] and [27] and [28] above. That is, I am satisfied that the Receivers have taken appropriate steps to bring the originating documents to the attention of those defendants and I will make proposed Order 3 above in respect of them.

9. I am also satisfied that the Receivers have brought the originating documents to the attention of those defendants to whom they posted the originating documents, both in Australia and the PRC (see at [29] and [30]). Accordingly, I will make proposed Order 3 above with respect to those defendants.

10. With respect to those defendants mentioned at [25] above, I do not accept the Receivers’ contention that it can be inferred those defendants received the 30 June email because they were included in group correspondence purporting to have been sent on their behalf. The same applies with respect to the 104^th defendant (see at [26] above). I am, however, satisfied that the 30 June email was delivered to individual email addresses previously used by each of those defendants (see at [21(a)]), and that the delivery confirmation mentioned at [20] above evidences that the Receivers have taken reasonable steps to bring the originating documents to the attention of those defendants. I will therefore make proposed Order 3 above with respect to each of them.

11. To sum up, for the reasons set out above, I will make orders that:

    1.The 158^th defendant cease to be a party.

    2.The 204^th defendant’s name be amended to “Louise Joy McKinnon”.

    3.The originating application, supporting affidavit of Timothy Heenan and affidavit of Tony Rossiter are deemed to have been served on the following defendants on the following dates:

    (a)for the 162^nd, 209^th and 232^nd defendants, on 21 July 2020.

    (b)for the 13^th defendant, on 29 July 2020.

    (c)for the 81^st and 82^nd defendants, 11 August 2020.

    (d)for all other defendants (apart from the 5^th, 6^th, 7^th, 8^th, 9^th, 12^th, 14^th, 15^th, 16^th, 20^th, 21^st, 22^nd, 29^th, 33^rd, 35^th, 36^th, 37^th, 41^st, 42^nd, 43^rd, 44^th, 49^th, 50^th, 51^st, 56^th, 57^th, 58^th, 59^th, 60^th, 67^th, 69^th, 71^st, 86^th, 89^th, 90^th, 96^th, 97^th, 98^th, 99^th, 100^th, 101^st, 102^nd, 106^th, 107^th, 108^th, 116^th, 118^th, 119^th, 122^nd, 125^th, 126^th, 129^th, 132^nd, 133^rd, 136^th, 138^th, 139^th, 145^th, 146^th, 148^th, 149^th, 154^th, 169^th, 171^st, 184^th, 193^rd, 198^th and 199^th defendants), 30 June 2020.

    4.The interlocutory application filed 4 June 2020 is dismissed.

    5.Costs are reserved.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Reeves.

Associate:       

Dated:       24 December 2020

SCHEDULE OF PARTIES

QUD 159 of 2020
Defendants
Fourth Defendant:	RUBY MANAGEMENT SURFERS PARADISE PTY LTD ACN 637 348 853
Fifth Defendant:	JUMING ZHU
Sixth Defendant:	PHOEBE SHING
Seventh Defendant:	JOCELYN SI CHEN
Eighth Defendant:	FANGJIE LI
Ninth Defendant:	NING ZHANG
Tenth Defendant:	MING FANG
Eleventh Defendant:	TSZ TO CHAN
Twelfth Defendant:	SHI MING ZHU
Thirteenth Defendant:	HUIXIN JIANG
Fourteenth Defendant:	LUANXIANG WANG
Fifteenth Defendant:	XIN HU
Sixteenth Defendant:	XIAOJUN REN
Seventeenth Defendant:	BOYUN XU
Eighteenth Defendant:	RUJUN JIN
Nineteenth Defendant:	HONG LI
Twentieth Defendant:	HAIYAN CAO
Twenty-First Defendant:	LINGFANG LIU
Twenty-Second Defendant:	YUANMEI HONG
Twenty-Third Defendant:	YINGJING ZHANG
Twenty-Fourth Defendant:	HAMISH GAVIN WATT
Twenty-Fifth Defendant:	PUI YEE CHAN
Twenty-Sixth Defendant:	JUNKANG LIN
Twenty-Seventh Defendant:	XI CHEN
Twenty-Eighth Defendant:	JUN ZHU
Twenty-Ninth Defendant:	XUN SUN
Thirtieth Defendant:	FEI CHEN
Thirty-First Defendant:	JING HUANG
Thirty-Second Defendant:	XIAOLAN CHEN
Thirty-Third Defendant:	YI CAI
Thirty-Fourth Defendant:	YAN CHEN
Thirty-Fifth Defendant:	MICHELLE LIANG
Thirty-Sixth Defendant:	ZHI MOU CHEN
Thirty-Seventh Defendant:	RUO BING CHEN
Thirty-Eighth Defendant:	ZE YI SHI
Thirty-Ninth Defendant:	HONG GUANG HUANG
Fortieth Defendant:	WEN QING DU
Forty-First Defendant:	SANDY SO MAY WU
Forty-Second Defendant:	ZHIQIANG LIN
Forty-Third Defendant:	ZHI SHENG HUA
Forty-Fourth Defendant:	JING ZHAO
Forty-Fifth Defendant:	JIANZHI YI
Forty-Sixth Defendant:	KYLIE YAU
Forty-Seventh Defendant:	YU DE WANG
Forty-Eighth Defendant:	ANNA YAN QUN QU
Forty-Ninth Defendant:	RUIBIN CHEN
Fiftieth Defendant:	LONG QIAN
Fifty-First Defendant:	NAIZHANG CHEN
Fifty-Second Defendant:	BIYUN CHEN
Fifty-Third Defendant:	JONATHAN CHAN
Fifty-Fourth Defendant:	HONG QIAO
Fifty-Fifth Defendant:	BING ZHANG
Fifty-Sixth Defendant:	YAN LING
Fifty-Seventh Defendant:	BING ZHONG WU
Fifty-Eighth Defendant:	GUOQING YAN
Fifty-Ninth Defendant:	HONGDAN YI
Sixtieth Defendant:	SONG JIN
Sixty-First Defendant:	JIA XI WANG
Sixty-Second Defendant:	CHUN MEI WONG
Sixty-Third Defendant:	HAO TAO LENG
Sixty-Fourth Defendant:	CARRIE YUN YI CHEN
Sixty-Fifth Defendant:	GIA-PHAM WU
Sixty-Sixth Defendant:	JIXIE WEI
Sixty-Seventh Defendant:	YANPING LI
Sixty-Eighth Defendant:	LIYU ZHANG
Sixty-Ninth Defendant:	CHUNXIA SHEN
Seventieth Defendant:	KOON TUNG CHU
Seventy-First Defendant:	SI MING HUANG
Seventy-Second Defendant:	JIE LI
Seventy-Third Defendant:	KIMSGOLD PTY LTD ACN 623 703 042 ATF KIM & GOLD FAMILY TRUST
Seventy-Fourth Defendant:	WENYI WANG
Seventy-Fifth Defendant:	NAN DING,
Seventy-Sixth Defendant:	HONG QI DING
Seventy-Seventh Defendant:	JIAN HUA
Seventy-Eighth Defendant:	MANNI AQUILINA
Seventy-Ninth Defendant:	XUXI CHEN
Eightieth Defendant:	FENGYING CHEN
Eighty-First Defendant:	XU YANG WANG
Eighty-Second Defendant:	NEI XU
Eighty-Third Defendant:	YI HUANG
Eighty-Fourth Defendant:	MIN ZHENG
Eighty-Fifth Defendant:	PAULA DIANNE HAMMOND
Eighty-Sixth Defendant:	LINA ZHU
Eighty-Seventh Defendant:	SHOU YUN YU
Eighty-Eighth Defendant:	HAI LIN
Eighty-Ninth Defendant:	MEISHAN LI
Ninetieth Defendant:	ZHENMING YANG
Ninety-First Defendant:	YI WEN
Ninety-Second Defendant:	LI FANG YANG
Ninety-Third Defendant:	CHEN WU
Ninety-Fourth Defendant:	GARY YING-GANG CHEN
Ninety-Fifth Defendant:	ANGELA KWONG
Ninety-Sixth Defendant:	WENQIANG WENG
Ninety-Seventh Defendant:	JIN FANG YAN
Ninety-Eighth Defendant:	WEI SHANG
Ninety-Ninth Defendant:	YING JIE GUO
One Hundredth Defendant:	SHEN ZHANG
One Hundred and First Defendant:	BILL MA
One Hundred and Second Defendant:	ANNIE MA
One Hundred and Third Defendant:	SI HUA JI
One Hundred and Fourth Defendant:	HONGBO CHEN
One Hundred and Fifth Defendant:	JUSTIN XIAOMING XUAN
One Hundred and Sixth Defendant:	JING ZHI TUYAN
One Hundred and Seventh Defendant:	XIANG CHEN
One Hundred and Eighth Defendant:	GUIMIAO WU
One Hundred and Ninth Defendant:	DICKSON HIU FUNG LEE
One Hundred and Tenth Defendant:	HONG WANG
One Hundred and Eleventh Defendant:	LAI YING CHAN
One Hundred and Twelfth Defendant:	JIE LEI
One Hundred and Thirteenth Defendant:	JIE LI
One Hundred and Fourteenth Defendant:	LIYA LI
One Hundred and Fifteenth Defendant:	FENG LU
One Hundred and Sixteenth Defendant:	JUN FU
One Hundred and Seventeenth Defendant:	HUILAN LIAO
One Hundred and Eighteenth Defendant:	XIN LI
One Hundred and Nineteenth Defendant:	JYH SHING LI
One Hundred and Twentieth Defendant:	MICHAEL KWOK CHUN TSE
One Hundred and Twenty-First Defendant:	HEI MAN NG
One Hundred and Twenty-Second Defendant:	QINGQING HAO
One Hundred and Twenty-Third Defendant:	PO WAH NG
One Hundred and Twenty-Fourth Defendant:	GUOQIANG XIANG
One Hundred and Twenty-Fifth Defendant:	JIAN OU
One Hundred and Twenty-Sixth Defendant:	MICHELLE LIANG
One Hundred and Twenty-Seventh Defendant:	GUO FA FANG
One Hundred and Twenty-Eighth Defendant:	JASMINE FANG
One Hundred and Twenty-Ninth Defendant:	GUOQIANG YAN
One Hundred and Thirtieth Defendant:	CHUNHONG YU
One Hundred and Thirty-First Defendant:	SHIBU RAMACHANDRAN
One Hundred and Thirty-Second Defendant:	KENNY QIN
One Hundred and Thirty-Third Defendant:	DONG HUA JIANG
One Hundred and Thirty-Fourth Defendant:	HAI XING ZHANG
One Hundred and Thirty-Fifth Defendant:	FENG LIN
One Hundred and Thirty-Sixth Defendant:	MEIQIONG CHEN
One Hundred and Thirty-Seventh Defendant:	XUN GU PTY LTD ACN 618 140 426 ATF XUN GU FAMILY TRUST
One Hundred and Thirty-Eighth Defendant:	BIN HU
One Hundred and Thirty-Ninth Defendant:	JIE WU
One Hundred and Fortieth Defendant:	GLEN PETER THOMPSON
One Hundred and Forty-First Defendant:	HWEE TENH CHIA
One Hundred and Forty-Second Defendant:	WAI HONG DAVID YAU
One Hundred and Forty-Third Defendant:	SHUYU XU
One Hundred and Forty-Fourth Defendant:	TOI MAN LAM
One Hundred and Forty-Fifth Defendant:	ELLA YIN ZHAO
One Hundred and Forty-Sixth Defendant:	ROYCE CHUYU PAN
One Hundred and Forty-Seventh Defendant:	QIAN YUAN
One Hundred and Forty-Eighth Defendant:	XIAOLONG HE
One Hundred and Forty-Ninth Defendant:	JIE WU
One Hundred and Fiftieth Defendant:	AUSTRALIA FAITH PTY LTD ATF LI FAMILY TRUST
One Hundred and Fifty-First Defendant:	SHU ZHANG
One Hundred and Fifty-Second Defendant:	YU TAO
One Hundred and Fifty-Third Defendant:	LINGZHOU WU
One Hundred and Fifty-Fourth Defendant:	ZHI JIA HUANG
One Hundred and Fifty-Fifth Defendant:	JAYVAN LAURENT
One Hundred and Fifty-Sixth Defendant:	KIT YEUNG
One Hundred and Fifty-Seventh Defendant:	YULI WU
One Hundred and Fifty-Eighth Defendant:	XUERO SONG
One Hundred and Fifty-Ninth Defendant:	DONGLU ZHENG
One Hundred and Sixtieth Defendant:	BIN CAO
One Hundred and Sixty-First Defendant:	LIXIN NIU
One Hundred and Sixty-Second Defendant:	KATHY XIN YING HE
One Hundred and Sixty-Third Defendant:	WX AP PTY LTD
One Hundred and Sixty-Fourth Defendant:	BEIBEI ZHANG
One Hundred and Sixty-Fifth Defendant:	JING ZHU
One Hundred and Sixty-Sixth Defendant:	CHUN YE
One Hundred and Sixty-Seventh Defendant:	GANG CHENG
One Hundred and Sixty-Eighth Defendant:	POI KEAN LUM
One Hundred and Sixty-Ninth Defendant:	JESSE SHENG JIN
One Hundred and Seventieth Defendant:	HAOGANG WU
One Hundred and Seventy-First Defendant:	HUNTER 8889 PTY LTD ATF HUNTER LIU FAMILY TRUST
One Hundred and Seventy-Second Defendant:	CHING LAN TSE
One Hundred and Seventy-Third Defendant:	WENTING SHEN
One Hundred and Seventy-Fourth Defendant:	YUDONG LI
One Hundred and Seventy-Fifth Defendant:	SHU HUI ZHANG
One Hundred and Seventy-Sixth Defendant:	BINGBING LIU
One Hundred and Seventy-Seventh Defendant:	PING WANG
One Hundred and Seventy-Eighth Defendant:	SHAORONG ZHUANG
One Hundred and Seventy-Ninth Defendant:	IAN HIU-WAH LAU
One Hundred and Eightieth Defendant:	LAP LING LUK
One Hundred and Eighty-First Defendant:	YEE LING ELAINE LI
One Hundred and Eighty-Second Defendant:	LINGHUA ZHOU
One Hundred and Eighty-Third Defendant:	SHUGUANG XU
One Hundred and Eighty-Fourth Defendant:	YANLING WANG
One Hundred and Eighty-Fifth Defendant:	LI WEN LI
One Hundred and Eighty-Sixth Defendant:	LI MIN SHEN
One Hundred and Eighty-Seventh Defendant:	MARS HO & GU PTY LTD ATF MARS & GU FAMILY TRUST
One Hundred and Eighty-Eighth Defendant:	EDITH WONG
One Hundred and Eighty-Ninth Defendant:	HAIDUO WANG
One Hundred and Ninetieth Defendant:	ZHANG FU QIU & XIAO HUI LIU ATF KMW QIU FAMILY SUPERANNUATION FUND
One Hundred and Ninety-First Defendant:	HAO JUE GU
One Hundred and Ninety-Second Defendant:	XUERU SONG
One Hundred and Ninety-Third Defendant:	XINYING WANG
One Hundred and Ninety-Fourth Defendant:	SHA WANG
One Hundred and Ninety-Fifth Defendant:	FANGHUA LIN
One Hundred and Ninety-Sixth Defendant:	RONGRONG HUANG
One Hundred and Ninety-Seventh Defendant:	TAO LIN
One Hundred and Ninety-Eighth Defendant:	JING LIN
One Hundred and Ninety-Ninth Defendant:	ZHUANG LIU
Two Hundredth Defendant:	YANDI WU
Two Hundred and First Defendant:	LOUISE CHIERT
Two Hundred and Second Defendant:	MELINDA THEODOSIOU
Two Hundred and Third Defendant:	KRYSTAL GLADYS
Two Hundred and Fourth Defendant:	LOIISE JOY MCKINNON
Two Hundred and Fifth Defendant:	EMMA ROGERS DUMAS
Two Hundred and Sixth Defendant:	LISA OMER
Two Hundred and Seventh Defendant:	ALETHEA TUITAHI
Two Hundred and Eighth Defendant:	MARTINA BANFIELD
Two Hundred and Ninth Defendant:	RACHAEL HEELAN
Two Hundred and Tenth Defendant:	RAELENE ROSEWALL
Two Hundred and Eleventh Defendant:	SCOTT FELL
Two Hundred and Twelfth Defendant:	MICHELLE MCCAUGHEY
Two Hundred and Thirteenth Defendant:	AMIE WESTON
Two Hundred and Fourteenth Defendant:	TRACEY TAHUPARAE
Two Hundred and Fifteenth Defendant:	FU CHEUNG
Two Hundred and Sixteenth Defendant:	MICHAEL GROSVENOR
Two Hundred and Seventeenth Defendant:	FIONA MARTIN
Two Hundred and Eighteenth Defendant:	TRACY O’REILLY
Two Hundred and Nineteenth Defendant:	STEVEN CARTLEDGE
Two Hundred and Twentieth Defendant:	SELINA PETERS
Two Hundred and Twenty-First Defendant:	CHRISTOPHER WRIGHT
Two Hundred and Twenty-Second Defendant:	LOUISE CARR
Two Hundred and Twenty-Third Defendant:	MELANIE CAMERON
Two Hundred and Twenty-Fourth Defendant:	DANNY LO
Two Hundred and Twenty-Fifth Defendant:	REBECCA CROOK
Two Hundred and Twenty-Sixth Defendant:	SHIZUKA WINDER
Two Hundred and Twenty-Seventh Defendant:	ANN BRASSER
Two Hundred and Twenty-Eighth Defendant:	ANGELA MASTERS
Two Hundred and Twenty-Ninth Defendant:	HOLLY HARDIMAN
Two Hundred and Thirtieth Defendant:	SHARI RICHARDSON
Two Hundred and Thirty-First Defendant:	STEVIE RAINES
Two Hundred and Thirty-Second Defendant:	DANI ROSE
Two Hundred and Thirty-Third Defendant:	SHAWN ANTHONY BONE
Two Hundred and Thirty-Fourth Defendant:	PETER DE SANTIS
Two Hundred and Thirty-Fifth Defendant:	NICHOLE JACOBSEN
Two Hundred and Thirty-Sixth Defendant:	KUDAKWASHE YEKEYE
Two Hundred and Thirty-Seventh Defendant:	ZOE ELMAN
Two Hundred and Thirty-Eighth Defendant:	HO CHUN YIN
Two Hundred and Thirty-Ninth Defendant:	KWOK HIN LAM COOLIA
Two Hundred and Fortieth Defendant:	MA PAK LAM