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

Supreme Court

New South Wales

Medium Neutral Citation: Sloan Global Advisors Pty Ltd v Fenix Ltd [2025] NSWSC 1237
Hearing dates: 19 September 2025, further submissions 3 October 2025
Date of orders: 21 October 2025
Decision date: 21 October 2025
Jurisdiction: Equity - Commercial List
Before: Peden J
Decision:
See [26]

Catchwords:
CIVIL PROCEDURE – default judgment – mixed claim for liquidated and unliquidated damages – costs limited for default judgment – judgment for the plaintiff for unliquidated damages to be assessed
PRIVATE INTERNATIONAL LAW – service – leave to proceed under r 11.8AA of UCPR – submitted to the jurisdiction – service in New Zealand and United States – not a clearly inappropriate forum – leave granted

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 64
Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters art 10
Legal Profession Uniform Law Application Regulation 2025 (NSW) s 20, sch 1 pt 1
Trans-Tasman Proceedings Act 2010 (Cth) s 9
Trans-Tasman Proceedings Regulation 2012 (Cth) r 5
Uniform Civil Procedure Rules 2005 (NSW) rr 10.22, 11.4, 11.8AA, 16.1, 16.2, 16.3, 16.6, 16.7, 16.8, sch 6

Cases Cited:
AGC Capital Securities Pty Ltd v JaiJaifu Modern Agriculture (HK) Limited [2019] NSWSC 62
Arnold v Forsythe [2012] NSWCA 18
Sinopec International (Australia) Pty Ltd v Su [2019] NSWSC 269
Stamford Capital Funds Management Pty Ltd v Tsihlis [2025] NSWSC 974
Thompson v Perpetual Trustees Victoria Limited (No 2) [2023] NSWSC 459
Wanis v Lifestyle Residences Hobsons Bay Pty Ltd (No 2) [2024] NSWSC 1296

Category: Principal judgment
Parties:
Sloan Global Advisors Pty Ltd (Plaintiff)
Fenix Ltd NZ (First Defendant)
Fenix Energy USA, LLC (Second Defendant)
Moshe Baum (Third Defendant)
Paul Gilbert Saffron (Fourth Defendant)
Representation:
Counsel:
C L W Street (Plaintiff)
Solicitors:
HWL Ebsworth Lawyers (Plaintiff)

File Number(s): 2025/00186424
Publication restriction: Nil

JUDGMENT

Sloan Global Advisors Pty Ltd seeks default judgment on its claim for breach of contract against Fenix Ltd NZ, Fenix Energy USA LLC, and Mr Moshe Baum, the chairman and CEO of Fenix Energy USA. Although Sloan Global sued a fourth defendant, Mr Paul Saffron, it does not seek any relief against him. Each of the relevant defendants is outside Australia and none has appeared or filed a Commercial List Response. Sloan Global also seeks leave to proceed under r 11.8AA(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
Sloan Global’s substantive claim broadly concerns a subscription agreement dated 9 January 2023, under which Fenix Ltd NZ (a subsidiary of Fenix Energy USA) agreed to buy 18,200 shares in Sloan Global for AUD $2,000,000 (Subscription Agreement). Those shares were intended to reflect 7% of Sloan Global’s post-expansion shareholding. Completion was to occur on execution of the Subscription Agreement, but the consideration was not paid.
On about 8 July 2024, Fenix Ltd NZ and Sloan Global, together with Fenix Energy USA, agreed to amend the Subscription Agreement to: (a) increase the number of subscription shares to 26,887 or 10% of…

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.

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Details

Case: [2025] NSWSC 1237
Decision Date: 21 October 2025

CaseChat Overview and Summary

Sloan Global Advisors Pty Ltd, a financial advisory firm, brought a claim against Fenix Ltd, an Australian company, in the Federal Circuit and Family Court of Australia. The plaintiff sought both liquidated and unliquidated damages for alleged breaches of a contractual agreement. The case involved complex issues of international law, including the appropriate jurisdiction for service and the enforceability of a contract signed overseas.

The primary legal issues before the court were whether leave should be granted to proceed with the claim under rule 11.8AA of the Federal Court Rules, considering the international elements of the case, and whether the costs for obtaining a default judgment should be limited. The court had to determine if the service of the claim in New Zealand and the United States was appropriate and whether the parties had submitted to the jurisdiction of the Australian court.

The court found that the plaintiff had demonstrated that service of the claim was effected in a manner consistent with the Hague Service Convention, and the defendants had not challenged the jurisdiction. Given the defendants' failure to respond, the court granted leave to proceed under rule 11.8AA. It held that the Australian court was not a clearly inappropriate forum and that the defendants had implicitly submitted to the jurisdiction. The court also noted that the default judgment for unliquidated damages should be assessed, while the costs associated with the default judgment were to be limited. This decision underscored the importance of international service protocols and the submission to jurisdiction in complex cross-border disputes.

Orders