Horizon Capital Financial S.A. R.L (Numero d'immatriculation B218902) v BCC Trade Credit Pty Ltd

[2023] NSWSC 917

Supreme Court

New South Wales

Medium Neutral Citation:

Horizon Capital Financial S.A. R.L (Numero d'immatriculation B218902) v BCC Trade Credit Pty Ltd [2023] NSWSC 917

Hearing dates:

4 August 2023

Date of orders:

4 August 2023

Decision date:

04 August 2023

Jurisdiction:

Equity - Commercial List

Before:

Stevenson J

Decision:

Leave to proceed under rule 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW) granted

Catchwords:

CIVIL PROCEDURE – service outside Australia – application for leave to proceed against foreign corporate defendants that failed to enter an appearance – where foreign corporate defendants subject to winding up proceedings in Hong Kong and Singapore

Legislation Cited:

Companies (Winding up and Miscellaneous Provisions) Ordinance (Hong Kong)

Corporations Act 2001 (Cth)

Cross-Border Insolvency Act 2008 (Cth)

Insolvency, Restructuring and Dissolution Act 2018 (Singapore)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

Horizon Capital Fund (Luxembourg Business Registration No. B218924) v Insurance Australia Ltd; Horizon Capital Fund (Luxembourg Business Registration No. B218924) v Tokio Marine & Nichido Fire Insurance Co. Ltd [2023] NSWSC 389

Rossiter v Core Mining Limited [2015] NSWSC 360

Category:

Procedural rulings

Parties:

Horizon Capital Financial S.A. R.L (Numero d'immatriculation B218902) (First Plaintiff)
Horizon Capital Financial S.A. R.L (Numero d'immatriculation B218924) (Second Plaintiff)
BCC Trade Credit Pty Ltd (First Defendant)
Tokio Marine & Nichido Fire Insurance Co Ltd (Second Defendant)
Lemarc Agromond Pty Ltd (Third Defendant)
Lemarc Agromond Pte Ltd (UNE 201507555G) (Fourth Defendant)
Lemarc Agromond Limited (2034446) (Fifth Defendant)

Representation:

Counsel:
D H Mitchell with M Caristo (Plaintiffs)
B Yin (First and Second Defendants)

Solicitors:
King Wood Mallesons (Plaintiffs)
Kennedys Law (First and Second Defendants)

File Number(s):

2022/384689

EX TEMPORE JUDGMENT (revised)

1. The plaintiff claims to be entitled as assignee to the proceeds of a trade credit insurance policy issued by the first and second defendants to the fourth and fifth defendants.

2. The plaintiff has served the fourth and fifth defendants in Singapore and Hong Kong respectively. They have not appeared.

3. By Notice of Motion filed on 4 July 2023, the plaintiff now seeks leave under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 11.8AA for leave to proceed against those defendants.

4. The first and second defendants, the insurer under the policy, have been served. They neither consent nor oppose to the granting of leave, although quite unnecessarily, in my view, have sought to have noted today matters that have no bearing on today's application.

5. When considering an application under UCPR r 11.8AA, four matters require consideration. ^[1]

   1. Rossiter v Core Mining Limited [2015] NSWSC 360 at [11] (Adamson J (as her Honour then was)), summarising Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41; at [50]-[61] (Gaudron, McHugh, Gummow and Hayne JJ).

6. The first is whether the defendants have been properly served.

7. UCPR r 11.8AC permits service of process overseas if service is effected in accordance with the law of the local jurisdiction. In this case, the fourth and fifth defendants were served by registered post at the registered office. Such service is permissible under the relevant laws of both Singapore and Hong Kong.

8. Second, it is necessary for the plaintiff to show that the claim made in the proceedings falls within one of the categories set forth in Sch 6 of the UCPR. This claim falls within a number of such categories, one of which is that it is a claim for enforcement, interpretation or other relief of a contract made in Australia, and it thus falls within subpar (b) of Sch 6. That is sufficient to satisfy this requirement.

9. The third requirement is that the plaintiff must show that it has an arguable case in the sense that it would survive a summary judgment application. The plaintiff directs attention to documents which appear to be assignments of the kind propounded in the proceedings. That is sufficient, in my opinion, to show an arguable case.

10. Finally, it must be shown that New South Wales is not a clearly inappropriate forum. New South Wales is the location of the first and second defendants, the insurers, and it is also the law of the relevant policy. New South Wales is not a clearly inappropriate forum.

11. Very properly, the plaintiff has drawn attention to proceedings which have taken place in both Hong Kong and Singapore concerning the fourth and fifth defendants.

12. So far as concerns the fourth defendant, winding up proceedings are on foot and are set to be heard on 18 August 2023. Section 133 of the Insolvency, Restructuring and Dissolution Act 2018 (Singapore) is to the same effect as s 471B of the Corporations Act 2001 (Cth), namely, that once winding up proceedings are on foot no further steps can be taken in proceedings.

13. As regards the fifth defendant, provisional liquidators have been appointed. Section 186 of Companies (Winding up and Miscellaneous Provisions) Ordinance (Hong Kong) is, again, in terms akin to those in s 471B of the Corporations Act. However, it is well established that, so far as this Court is concerned, those provisions operate only within the territory of the enacting legislation. ^[2]

    2. For example, see the recent decision of Darke J in Horizon Capital Fund (Luxembourg Business Registration No. B218924) v Insurance Australia Ltd; Horizon Capital Fund (Luxembourg Business Registration No. B218924) v Tokio Marine & Nichido Fire Insurance Co. Ltd [2023] NSWSC 389 at [22] and the cases cited therein.

14. Searches have been conducted to ascertain whether or not any steps have been taken under the Cross-Border Insolvency Act2008 (Cth) to have the foreign insolvency proceedings recognised in an Australian court. The result of those searches is that no such steps have been taken.

15. In those circumstances, I am satisfied that the plaintiff has established an entitlement to the orders it seeks.

16. I make orders in accordance with pars 1 and 2 of the plaintiff's Notice of Motion of 4 July 2023.

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Endnotes

Decision last updated: 07 August 2023