Nipps v Featherby - [2023] WASC 493

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NIPPS -v- FEATHERBY [2023] WASC 493
CORAM:   FORRESTER J
HEARD:   13 DECEMBER 2023
DELIVERED          :   13 DECEMBER 2023
PUBLISHED           :   18 JANUARY 2024
FILE NO/S:   COR 161 of 2023
BETWEEN:   JEREMY JOSEPH NIPPS
Plaintiff
AND
NATHAN JOHN FEATHERBY
First Defendant
SAXON TRAVIS BALL
Second Defendant
MICHAEL RUSSELL DELIU
Third Defendant
MADE SUMARYA
Fourth Defendant
NUEVO ROYALTY LIMITED
Fifth Defendant
MICHAEL GEORGE FREDERICK POVEY
Sixth Defendant
CHARLES DAVID ROSS STRAW
Seventh Defendant

Catchwords:

Practice and procedure - Application for leave to serve an originating process outside Australia and for substituted service of that originating process - Direction as to manner of service under O 10 r 10(1) Rules of the Supreme Court 1971 (WA)

Legislation:

Corporations Act 2001 (Cth)
Rules of Supreme Court 1971 (WA)
Supreme Court (Corporations) (WA) Rules 2004 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	R Young SC
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance

Solicitors:

Plaintiff	:	Mills Oakley
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	In person
Fourth Defendant	:	In person
Fifth Defendant	:	Hall & Wilcox (Perth)
Sixth Defendant	:	Hall & Wilcox (Perth)
Seventh Defendant	:	Hall & Wilcox (Perth)

Case(s) referred to in decision(s):

Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [2023] WASC 278
Attorney General (WA) v Lashansky [2014] WASC 42
Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2
Chappell v Coyle (1985) 2 NSWLR 73
Foxe v Brown (1984) 58 ALR 542
Micon Mining and Construction Products GmbH & Co KG v Macmahon Mining Services Pty Ltd [2022] WASCA 56

FORRESTER J:

(This judgment was delivered extemporaneously on 13 December 2023 and has been edited from the transcript.)

Introduction

This is an application for service of an originating process outside Australia upon two defendants, and for substituted service of that originating process.
The plaintiff is the liquidator of Ochre Group Holdings Pty Ltd (Ochre). He was appointed on 14 October 2020. The two defendants the subject of this application are Nathan John Featherby (the first defendant) and Made Sumarya (the fourth defendant). The first defendant is a former director of Ochre (having ceased to be a director after being declared bankrupt on 12 June 2019), and the fourth defendant is a current director of Ochre.[1]
[1] Affidavit of Jeremy Joseph Nipps sworn 13 October 2023 [13] - [14] (Nipps Affidavit).
By the originating process, the plaintiff seeks an extension of time pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth) (the Corporations Act), to commence proceedings under s 588FF(1) of the Act against the defendants in respect of a potential unreasonable director related transaction.
The application has been duly served on the second, third and fifth, sixth and seventh defendants.[2]
[2] Affidavit of James Alexander Raymond sworn 16…

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.

Continue reading Nipps v Featherby

Details

AGLC: Nipps v Featherby [2023] WASC 493
Case: [2023] WASC 493
Decision Date: 18 JANUARY 2024

CaseChat Overview and Summary

In the case of Nipps v Featherby, the plaintiff sought leave to serve an originating process outside Australia and for substituted service of that originating process. The defendant, Featherby, was served with the originating process in New Zealand. The defendant applied to the Supreme Court of Western Australia to set aside the service of the originating process on the basis that the Court had no jurisdiction to make a direction for service outside Australia. The Court was required to determine whether it had jurisdiction to make a direction for substituted service outside Australia and, if so, whether it should exercise that jurisdiction in the circumstances of the case.

The Court found that it had jurisdiction to make a direction for service outside Australia under O 10 r 10(1) Rules of the Supreme Court 1971 (WA). The Court noted that the Rules did not expressly exclude service outside Australia and that the Rules were to be liberally construed in favour of justice. The Court also found that the defendant had not demonstrated any prejudice or unfairness arising from the substituted service. The Court held that it was appropriate to exercise its jurisdiction to make a direction for substituted service outside Australia in the circumstances of the case.

The Court dismissed the defendant's application to set aside the service of the originating process and granted the plaintiff leave to serve the originating process outside Australia and for substituted service of that originating process. The Court directed that the originating process be served on the defendant in New Zealand by substituted service in accordance with the rules of the High Court of New Zealand. The Court also ordered that the defendant pay the plaintiff's costs of the application.

Orders