Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers appointed)
[2010] FCA 393
•12 March 2010
FEDERAL COURT OF AUSTRALIA
Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers appointed) [2010] FCA 393
Citation: Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers appointed) [2010] FCA 393 Parties: ANTHONY JOHN WARNER & STEVEN KUGEL IN THEIR CAPACITIES AS JOINT & SEVERAL LIQUIDATORS OF BELLPAC PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) ACN 101 713 017 and BELLPAC PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) ACN 101 713 017 v KEN YUK KEE HUNG and GUJARAT NRE MINERALS LTD ACN 111 244 896 File number: NSD 34 of 2010 Judge: EMMETT J Date of judgment: 12 March 2010 Legislation: Federal Court Rules Date of hearing: 12 March 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 10 Counsel for the Plaintiffs: D Mackay Solicitor for the First Plaintiff: Breene & Breene
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD34 of 2010
IN THE MATTER OF BELLPAC PTY LTD (RECEIVERS & MANAGERS APPOINTED)
BETWEEN: ANTHONY JOHN WARNER & STEVEN KUGEL IN THEIR CAPACITIES AS JOINT & SEVERAL LIQUIDATORS OF BELLPAC PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) ACN 101 713 017
First PlaintiffBELLPAC PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) ACN 101 713 017
Second PlaintiffAND: KEN YUK KEE HUNG
First DefendantGUJARAT NRE MINERALS LTD ACN 111 244 896
Second Defendant
JUDGE:
EMMETT J
DATE OF ORDER:
12 MARCH 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Plaintiffs:
(a) Serve a copy of the Documents personally on Mr Edgar Hung, the defendant’s son, of 13 Austin Grove, Zetland in the State of New South Wales;
(b) Send a copy of the Documents by ordinary post to the defendant’s last known address, being 33 Hawthorne Avenue, Chatswood in the State of New South Wales; and
(c) Leave a copy of the Documents at the defendant’s last known address, being 33 Hawthorne Avenue, Chatswood in the State of New South Wales.
2.Pursuant to Order 7 rule 9(1) of the Federal Court Rules, the Documents be taken to be served upon the Defendant upon the Plaintiffs’ compliance with orders 1(a), 1(b) and 1(c).
3.For the purpose of these orders the term Documents is taken to mean:
(a) A copy of these Orders;
(b) Letter from Breene & Breene solicitors to Mr Ken Yuk Kee Hung dated 19 January 2010;
(c) Orders made by the Court on 18 January 2010;
(d) Originating Process dated 18 January 2010;
(e) Interlocutory Process dated 18 January 2010;
(f) The affidavit of Anthony John Warner sworn 18 January 2010;
(g) The affidavit of Alexander David Monaghan sworn 18 January 2010;
(h) Exhibit AW1 to the affidavit of Anthony John Warner sworn 18 January 2010; and
(i) Written submissions handed up to Justice Stone during the hearing on 18 January 2010.
4.The matter be listed for further directions on 23 April 2010.
5.The orders be entered forthwith.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD34 of 2010
IN THE MATTER OF BELLPAC PTY LTD (RECEIVERS & MANAGERS APPOINTED)
BETWEEN: ANTHONY JOHN WARNER & STEVEN KUGEL IN THEIR CAPACITIES AS JOINT & SEVERAL LIQUIDATORS OF BELLPAC PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) ACN 101 713 017
First PlaintiffBELLPAC PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) ACN 101 713 017
Second PlaintiffAND: KEN YUK KEE HUNG
First DefendantGUJARAT NRE MINERALS LTD ACN 111 244 896
Second DefendantJUDGE:
EMMETT J
DATE:
12 MARCH 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The first plaintiffs (the Liquidators) are the liquidators of the second plaintiff, Bellpac Pty Ltd (Bellpac). The Liquidators were originally appointed as voluntary administrators of Bellpac on 30 July 2009, and were appointed as liquidators under a creditors’ voluntary winding up on 3 September 2009. The Liquidators and Bellpac seek relief against the defendant, Ken Yuk Kee Hung, in relation to bonds issued to Bellpac on 23 July 2008 by Gujarat NRE Minerals Limited (Gujarat). Bellpac is still shown in Gujarat’s register as the owner of the bonds.
On 20 October 2009, the Liquidators’ solicitors inquired of Gujarat as to ownership of the bonds. On 18 December 2009, the Liquidators were informed that Gujarat had received forms of transfer in respect of the bonds. The transfers named Mr Hung as the transferee. On 18 January 2010, Stone J granted interlocutory injunctions restraining the registration of the transfers of the bonds to Mr Hung.
The purported transfers have raised several concerns in the minds of the Liquidators. Although the purported date of purchase is 23 October 2008, the forms of transfer are dated 17 November 2009, the day after the commencement of the winding up. They were also executed pursuant to a power of attorney, which is limited in its terms. The Liquidators have been unable to find any evidence of any consideration having been paid to Bellpac for the transfer of the bonds. There may also be questions as to whether or not any genuine transaction that was entered into was an uncommercial transaction, or may have been a preferential transaction.
The Liquidators and Bellpac have not been able to effect personal service on Mr Hung. Order 7 Rule 1(1) of the Federal Court Rules (the Rules) provides that originating process must be served personally on each respondent. Under Rule 2, personal service of a document is effected on an individual by leaving a copy of the document with the individual. The Corporations Rules provide for the time of service, but do not vary the operation of Order 7.
The transfers of the bonds specify Mr Hung’s address as 33 Hawthorn Avenue, Chatswood, New South Wales. In addition, a company search of Auscorp International Limited, conducted on 15 January 2010, discloses that Mr Hung is a director of that company. The search indicates that his address is 33 Hawthorn Avenue, Chatswood, New South Wales. It appears that Mr Hung is not presently in Australia, although there is nothing to suggest that 33 Hawthorn Avenue, Chatswood does not continue to be his residence in Australia.
Neighbours of 33 Hawthorn Avenue Chatswood have confirmed that Mr Hung resides there but have indicated that they do not know when he may return. The Liquidators’ solicitors have spoken to Mr Edgar Hung, the son of Mr Ken Hung, the defendant. Mr Edgar Hung said that he was prepared to co-operate with the Liquidators’ solicitors, but that his father is overseas. Mr Edgar Hung said that the liquidator’s solicitors could send documents to him, Mr Edgar Hung.
In an email, Mr Edgar Hung subsequently complained to the Liquidators’ solicitors about what is said to have been a “demanding and discourteous” telephone call on 20 January 2010. The email said that Mr Edgar Hung had not spoken to his father for some three to four weeks, and that he had not seen his father since early October 2009. Mr Edgar Hung also said that his father is currently not in Australia, and is likely to be travelling around Asia. Mr Edgar Hung says that he has no way of contacting his father.
At 7:05 pm on 2 March 2010, an attempt was made to serve the originating process and affidavits at 33 Hawthorn Avenue, Chatswood. There was no response from inside the premises. A further attempt was made at 4:30pm on the following day, 3 March 2010. Again, there was no response from inside the premises. The occupier of number 35 Hawthorn Avenue confirmed that Mr Ken Yuk Kee Hung resides at number 33 Hawthorn Avenue, but said that he is presently away.
Rule 9 of Order 7 provides that where, for any reason, it is impractical to serve a document in the manner set out in the Rules, the Court may order that, instead of service, such steps be taken as are specified in the order, for the purpose of bringing the document to the notice of the person to be served. Where the Court makes such an order, the Court may order that the documents be taken to have been served on the happening of any specified event, or on the expiry of any specified time. The Liquidators and Bellpac have applied for an order under Rule 9 that service on Mr Hung be effected by serving a copy of the documents on his son, Mr Edgar Hung, by leaving a copy of the documents at 33 Hawthorn Avenue, Chatswood and by posting a copy of the documents to 33 Hawthorn Avenue, Chatswood.
It is slightly debatable as to whether or not, and if so, when, the documents will come to the attention of Mr Ken Yuk Kee Hung. However, in the circumstances, I consider that it is appropriate to make an order under Order 9 along the lines that I have just foreshadowed. Service will be taken to be effected once those three steps have been taken.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 22 April 2010
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