Shanghai Chenggong Industrial Co Ltd v Chen

[2025] NSWSC 723

Supreme Court

New South Wales

Medium Neutral Citation:

Shanghai Chenggong Industrial Co Ltd v Chen [2025] NSWSC 723

Hearing dates:

On the papers

Date of orders:

08 July 2025

Decision date:

08 July 2025

Jurisdiction:

Equity - Commercial List

Before:

Peden J

Decision:

See [36]

Catchwords:

CIVIL PROCEDURE – Service – Informal service – Where plaintiff’s agents personally served originating documents on defendant’s ex-father-in-law – Whether such service sufficient steps taken for purpose of bringing originating documents to notice of defendant – Application for confirmation of informal service dismissed

CIVIL PROCEDURE – Service – Substituted service – Where defendant ordinarily resident in People’s Republic of China – Where defendant prohibited by Consumption Restriction Orders from departing from People’s Republic of China – Where plaintiff attempted personal service on two occasions – Whether originating documents unable practicably to be served on defendant – Application for order for substituted service dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56(1), 57(1)

Uniform Civil Procedure Rules 2005 (NSW) rr 10.14, 10.20, 11.4, sch 6

Cases Cited:

Alstom Ltd v Sirakas [2010] NSWSC 669

Atkinson v Crowley [2011] NSWCA 194

Bayles v Nationwide News Pty Ltd [2020] FCA 1213

Capral Ltd v DNV AS [2024] NSWSC 96

Chappell v Coyle (1985) 2 NSWLR 73

Commissioner of the Australian Federal Police v Xin (No 2) [2024] NSWSC 1606

Elcham v Darling Island Sydney Pty Ltd [2005] NSWSC 448

LFDB v SM (No 5) [2025] FCA 654

Nature’s Care Holdings Pty Ltd v Chen (No 3) [2024] NSWSC 245

Nash v Stewart [2010] NSWSC 513

Saffron Walden Second Benefit Building Society v Rayner (1880) 14 Ch D 406

Sanum Investments Ltd v ST Group Co Ltd (No 2) [2019] FCA 1047

Syndicate Mortgage Solutions Pty Ltd v El-Sayed [2009] NSWSC 207

Vista Capital Developments Pty Ltd v Talmarc Pty Ltd [2008] NSWSC 935

WFM Motors Pty Ltd v Maidwell (Supreme Court of New South Wales, Bryson J, 23 April 1993, unreported)

White v Illawarra Mutual Building Society Ltd [2002] NSWCA 164

Zorbas v Titan Properties (Aust) Pty Ltd [2005] NSWSC 486

Category:

Procedural rulings

Parties:

Shanghai Chenggong Industrial Co Ltd (Plaintiff)
Zhihua Chen (Defendant)

Representation:

Counsel:
DJ Townsend (Plaintiff)

Solicitors:
JurisBridge Legal (Plaintiff)

File Number(s):

2025/00229601

Publication restriction:

Nil

JUDGMENT

1. Shanghai Chenggong Industrial Co Ltd seeks an order under r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW) confirming as effectual the informal service of its Summons and a Commercial List Statement on Mr Zhihua Chen. Those documents were personally served on Mr Chen’s former father-in-law, Mr Xiangkang Jin, who lives in Zhuhai City, Guangdong Province. There is no evidence that Mr Chen was present when the documents were given to Mr Jin.

2. In the alternative, Shanghai Chenggong seeks an order for substituted service, permitting it to mail the documents, and any other documents to be filed in these proceedings, to the Zhuhai City address, pursuant to r 10.14(1)(a) of the UCPR.

3. In the substantive proceedings, Shanghai Chenggong seeks the recognition and enforcement in New South Wales of three judgments of the Shanghai Pudong New Area People’s Court, Shanghai Province, against Mr Chen. These proceedings have been instituted alongside cognate proceedings in this Court, seeking the recognition and enforcement of other foreign judgments against Mr Chen.

4. For the reasons that follow, the application must be dismissed.

Attempts to serve the documents upon the defendant

5. To date, Shanghai Chenggong has made two attempts to serve Mr Chen with the documents, as well as with a supporting affidavit and a notice to defendant served outside of Australia.

6. First, personal service was attempted at what is believed to be Mr Chen’s residence in Zhuhai City. The service agent, Ms Chunxia Zhang, deposed that Mr Jin met her and her colleague, Mr Jianfeng Zhu, at the front door to the property, along with a Mrs Meidi Zhang. In attempting to effect service, Ms Chunxia Zhang deposed that she had the following conversation with Mr Jin:

Chunxia Zhang: Hello, we are from Shanghai Chenggong Industrial Co Ltd. I was instructed to serve Zhihua Chen on the legal documents.

Xiangkang Jin: Please come in. What documents could possibly require you to deliver them in person! I have never heard of documents being personally delivered. You have come a long way.

Chunxia Zhang: No worries. Can you please pass these documents to Zhihua Chen?

Xiangkang Jin: [Accepting the Documents] How can I pass them to Zhihua Chen? What’s the point of giving me the documents?

Jianfeng Zhu: These are Australian proceeding documents against Zhihua Chen. They were written in English.

Chunxia Zhang: You can pass them to Zhihua Chen when you see him.

Jianfeng Zhu: Okay.

7. It is unclear whether Ms Zhang made an error in attributing to Mr Zhu, rather than to Mr Jin, the agreement to pass on the documents to Mr Chen. In any event, Ms Zhang deposed to observing Mr Jin inspect the “seal of the envelope” containing the documents.

8. Personal service was attempted at that address because Mr Chen’s daughter, Ms Yan Chen, who is Shanghai Chenggong’s executive director and legal representative, believes that Mr Chen primarily resides at the property in Zhuhai City because his son attends a local high school. She deposes that, in the cognate proceedings referred to at [2] above, Mr Chen has formerly been personally served at that address. Ms Chen further deposes that Mr Chen is subject to two “Consumption Restriction Orders”, being enforcement orders issued by a Chinese court that relevantly restrict his ability to depart from mainland China until the underlying debts that gave rise to the orders are discharged.

9. Ms Chen’s evidence is that she believes Mr Chen continues to have an ongoing professional and personal relationship with Mr Jin, such that she has “no reason to doubt that the documents accepted by Mr Jin will have been promptly passed on to” her father.

10. In addition to the property at Zhuhai City, Ms Chen deposes that Mr Chen also owns, or has owned, two properties in Pudong New Area, Shanghai Province, and that he might have relocated to Huadian City, Jilin Province, with his ex-wife, in order to conduct a mining business there.

11. Secondly, Shanghai Chenggong attempted to serve the documents on AHD Lawyers, Mr Chen’s Australian solicitors acting for him in the cognate proceedings in this Court. On 16 June 2025, Shanghai Chenggong’s solicitors in these proceedings requested confirmation by 3:00pm the next day whether AHD Lawyers had “instructions to accept service of these documents” for Mr Chen. AHD Lawyers has not responded to that request.

12. Ms Chen deposes to attempting to contact Mr Chen in December 2024 by messages on WeChat, so as to apprise him of other proceedings brought by Shanghai Chenggong against him. On Ms Chen’s evidence, that attempt at contact consisted of her sending through “certain legal documents” filed in the cognate proceedings referred to at [2], and her father replying by asking, “What do you mean?”. Ms Chen deposes to making no further attempts to converse with her father via WeChat.

Confirmation of informal service under r 10.14(3) of the UCPR

13. Rule 10.14(3) of the UCPR confers a discretion upon the Court, where “steps have been taken … for the purpose of bringing the document to the notice of the person concerned”, to “direct that the document be taken to have been served on that person on a date specified in the order”. Where such an order is made, r 10.14(4) of the UCPR deems those steps to “constitute personal service”.

14. As was recently observed by Faulkner J in Commissioner of the Australian Federal Police v Xin (No 2) [2024] NSWSC 1606 at [41], unlike the Court’s discretion to order substituted service under r 10.14(1) of the UCPR, the discretion to confirm informal service is not concerned with:

… the practicability of service on the person. Rather, it is concerned with whether steps have already been taken for the purpose of bringing the relevant document to the notice of the person concerned. If such steps have been taken, the Court may make an order under UCPR 10.14(3) regardless of the practicability or impracticability of further steps being taken. In such a case, an order under UCPR 10.14(3) may be appropriate to facilitate the just, quick and cheap resolution of the real issues in the proceedings…

15. It is well-accepted that any exercise of the Court’s discretion ought to be informed by the overriding purpose of civil litigation set out in s 56(1), and the objects of case management outlined in s 57(1), of the Civil Procedure Act 2005 (NSW): see, eg, Capral Ltd v DNV AS [2024] NSWSC 96 at [78] (Nixon J).

16. It is also accepted that, where, as here, service upon a foreign defendant is permitted by r 11.4(1) of, and sch 6 to, the UCPR, an order for confirmation of informal service may be made under r 10.14(3) by this Court: see, eg, Nature’s Care Holdings Pty Ltd v Chen (No 3) [2024] NSWSC 245 at [49]-[50] (Stevenson J).

17. The purpose of r 10.14(3) is to relax the strictures imposed upon an applicant for substituted service: cf Elcham v Darling Island Sydney Pty Ltd [2005] NSWSC 448 at [33] (Campbell J). But that relaxation is not absolute. Indeed, there appears to be a question as to whether the discretion to confirm informal service is enlivened at all in respect of documents that, as is the case with originating processes, must be served personally by reason of r 10.20(2) of the UCPR: see, in the context of an application for substituted service of a subpoena ad testificandum, Nash v Stewart [2010] NSWSC 513 at [13] (Barrett J). In the absence of submissions by Shanghai Chenggong’s counsel, and in circumstances where, in any event, the application for confirmation of informal service is to be dismissed, I express no view on that question.

Consideration

18. The thrust of the application for an order under r 10.14(3) is that Mr Chen has been sufficiently notified of the claims against him in these proceedings, because the documents were left with Mr Jin at what is believed to be Mr Chen’s primary residence, and in light of the apparent subsisting relationship between Mr Chen and Mr Jin. It is submitted that such notice achieves the “substantial purpose of achieving procedural justice … which underlies the requirement for service of process”: WFM Motors Pty Ltd v Maidwell (Supreme Court of New South Wales, Bryson J, 23 April 1993, unreported) 5, quoted in Zorbas v Titan Properties (Aust) Pty Ltd [2005] NSWSC 486 at [21] (Campbell J).

19. The difficulty with that contention is that the steps taken to ensure that the documents would be brought to Mr Chen’s attention did not go far enough in my opinion. On the evidence of Ms Zhang, no enquiries were made as to whether:

1. Mr Chen was present somewhere in the residence at the time of service, and, if not, when or whether he would return;

2. Mr Chen actually resided at that address, primarily or otherwise; and

3. Mr Jin was expecting at any point to see Mr Chen and to deliver the documents to him.

20. Further, given that, as adverted to above at [6], it is unclear whether Mr Jin even agreed to give the documents to Mr Chen, I am not satisfied that sufficient steps have been taken for the purpose of bringing those documents to Mr Chen’s notice.

21. Further, Ms Chen’s evidence that the address is Mr Chen’s primary residence is unconvincing. Even accepting her evidence that Mr Chen has previously been personally served at that address, the mere fact that Mr Chen’s son may attend a high school in Zhuhai City does not lead to a compelling inference that Mr Chen still resides there. Against that is the fact that, on Ms Chen’s evidence, Mr Chen and his ex-wife are jointly involved in an active mining project in Huadian City, and at least Mr Chen’s ex-wife has relocated closer to that project.

22. Accordingly, the plaintiff’s application for confirmation of informal service under r 10.14(3) of the UCPR must be dismissed.

23. For completeness, I note that no application for confirmation of informal service by the attempt to effect service on AHD Lawyers was pressed. An application advanced on that premise may well have been arguable: see, eg, Vista Capital Developments Pty Ltd v Talmarc Pty Ltd [2008] NSWSC 935 (Brereton J). However, it should not be presumed that solicitors have instructions to accept service on behalf of a person simply because that person has retained them in other proceedings: cf, in the context of the doctrine of imputed notice, Saffron Walden Second Benefit Building Society v Rayner (1880) 14 Ch D 406 at 409 (James LJ, with whose reasons Baggallay LJ) and at 415 (Bramwell LJ), approved in White v Illawarra Mutual Building Society Ltd [2002] NSWCA 164 at [128] (Powell JA, with whose reasons Hodgson JA and Hamilton J agreed). I express no concluded view on this matter.

Should an order for substituted service be made?

24. In the alternative, Shanghai Chenggong seeks orders for substituted service under r 10.14(1)(a) of the UCPR with respect to both the Summons and Commercial List Statement and any other documents that may be filed in these proceedings. Shanghai Chenggong submits that:

1. further attempts at personal service at the same residence will not be fruitful; and

2. the necessity of retaining agents to serve documents will render any further attempts at service “time-consuming, troublesome and costly”.

25. Shanghai Chenggong contends that the preferred course of effecting service would be by physically mailing them to the Zhuhai City address, rather than by relaying them by email or WeChat. That contention is underpinned by the concerns of Chinese cultural connotations of direct service of such documents by Ms Chen, being Mr Chen’s child. Further, reference is made to the ease with which WeChat users can block other users.

26. Rule 10.14(1)(a) confers a discretion upon the Court to order that, where “a document that is required or permitted to be served on a person in connection with any proceedings … cannot practicably be served on the person”, “such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned” in lieu of personal service.

27. The principles governing the exercise of the Court’s discretion to order substituted service pursuant to r 10.14(1)(a) of the UCPR are well-settled. The Court must, first, be satisfied that the effectuation of personal service upon Mr Chen would be impracticable: Syndicate Mortgage Solutions Pty Ltd v El-Sayed [2009] NSWSC 207 at [3] (Brereton J). Shanghai Chenggong must establish not that personal service is impossible, but rather that, in the circumstances of the case, “it is not sensible or realistic to effect personal service, even though it is possible or feasible to do so”: LFDB v SM (No 5) [2025] FCA 654 at [5] (Younan J); cf Alstom Ltd v Sirakas [2010] NSWSC 669 at [40] (Palmer J).

28. Secondly, the Court must be satisfied that the documents sought to be served otherwise than in accordance with r 10.20(2) of the UCPR are reasonably “likely to reach the defendant, or to come to his knowledge, if the method of substituted service asked for by the plaintiff is adopted”: Chappell v Coyle (1985) 2 NSWLR 73 at 77 (Yeldham J), cited in Atkinson v Crowley [2011] NSWCA 194 at [38] (Basten JA, with whose reasons Giles and Young JJA agreed).

Consideration

29. Similar to the issue with confirming informal service, there is insufficient persuasive evidence to support the application for substituted service for the following reasons.

30. First, I am not satisfied on the evidence that the Zhuhai City property is, in fact, Mr Chen’s primary residence. Mr Chen may instead have relocated to Huadian City, or elsewhere, as he has owned other properties. On this last matter, Ms Chen’s evidence that, to the best of her knowledge, the defendant “does not regularly reside” in one alternative address is not explicated in any way in her affidavit. That is so, notwithstanding that the address located in Zhuqiao Town, Pudong New Area, is listed as Mr Chen’s residential address in each of the three judgments sought to be enforced in these proceedings.

31. Secondly, there is no evidence that documents posted to that property are likely to be brought to Mr Chen’s attention, in circumstances where, on the sole attempt made, Mr Jin seems to have given no undertaking to give the documents to Mr Chen.

32. Thirdly, it is not sufficient for an order for substituted service that Ms Chen’s evidence is that any attempt to serve her father via WeChat or email would be futile. As Yeldham J explained at 77 of Chappell v Coyle, the focus of the Court’s inquiry is on the method of substituted service identified by the plaintiff, not the supposed deficiencies of alternative methods that might be employed to effect substituted service.

33. I accept that there may well be financial and logistical difficulties with any service on Mr Chen in China. Ms Chen estimates another attempt to serve Mr Chen at his apparent residence would cost approximately $1,500 AUD. But, overall that cost is relatively modest, and “mere inconvenience is not enough”: Bayles v Nationwide News Pty Ltd [2020] FCA 1213, at [41] (Katzmann J). Further, there is nothing to suggest that the circumstances amount to a “state of affairs which is practically impossible to navigate without substantial difficulty”, should personal service in the ordinary course be insisted upon: Sanum Investments Ltd v ST Group Co Ltd (No 2) [2019] FCA 1047 at [151] (Foster J).

34. It follows that I am not satisfied that personal service in accordance with r 10.20(2)(a) of the UCPR is impracticable nor that the identified method of substituted service is reasonably likely to bring the documents to Mr Chen’s notice.

35. The application for substituted service must be dismissed.

Appropriate orders

36. For these reasons, the appropriate orders are:

1. The plaintiff’s notice of motion filed on 26 June 2025 is dismissed.

2. No order as to costs.

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Decision last updated: 08 July 2025