Wyer v International Capital Markets Pty Ltd

[2024] FCA 284

FEDERAL COURT OF AUSTRALIA

Wyer v International Capital Markets Pty Ltd [2024] FCA 284

File number(s):

VID 88 of 2024

Judgment of:

O’BRYAN J

Date of judgment:

22 March 2024

Catchwords:

PRACTICE AND PROCEDURE – service out of the jurisdiction – substituted service – where the applicant claims it is not possible to serve the second respondent in the United Arab Emirates in accordance with a convention, the Hague Convention or the law of the United Arab Emirates – orders for substituted service and related orders made

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth) ss 12CB, 12DA, 12DF

Corporations Act 2001 (Cth) ss 963E, 991A, 994E, 1041E, 1041H

Federal Court of Australia Act 1976 (Cth)

Cases cited:

Bain v International Capital Markets Pty Ltd [2024] FCA 283

Division:

General Division

Registry:

Victoria

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs:

5

Date of hearing:

22 March 2024

Counsel for the Applicant:

E Olivier

Solicitors for the Applicant:

Piper Alderman

Counsel for the First Respondent:

D Thomas SC

Solicitor for the First Respondent:

Quinn Emanuel

ORDERS

VID 88 of 2024

BETWEEN:

CHRISTOPHER WYER

Applicant

AND:

INTERNATIONAL CAPITAL MARKETS PTY LTD ACN 123 289 109

First Respondent

ANDREW LEON BUDZINSKI

Second Respondent

ORDER MADE BY:	O’BRYAN J
DATE OF ORDER:	22 MARCH 2024

THE COURT ORDERS THAT:

1.Pursuant to r 10.44 of the Federal Court Rules 2011 (Cth), the Applicant has leave to serve the following documents (the Ancillary Documents) outside Australia:

(a)the Statement of Claim and the Genuine Steps Statement;

(b)a copy of these orders; and

(c)a notice in accordance with r 10.43B of the Federal Court Rules 2011 (Cth).

2.Pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), the Applicant has leave to effect service of the Originating Application and the Ancillary Documents on the Second Respondent by sending a copy of those documents:

(a)by email to the email address [e-mail]; and

(b)by pre-paid registered mail to the address Boulevard Apartment 5901, Downtown Dubai, Dubai, United Arab Emirates; and

(c)to the First Respondent with a request that the First Respondent forward the documents to the Second Respondent by any method that the First Respondent ordinarily sends written communications to the Second Respondent.

3.The Applicant serve the Originating Application and the Ancillary Documents on the Second Respondent pursuant to the means specified in order 2 above by 5.00 pm on 28 March 2024.

4.Pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), upon the Applicant complying with the terms of order 2 above, the Originating Application and the Ancillary Documents are to be taken to have been personally served upon the Second Respondent.

5.Pursuant to r 10.43C of the Federal Court Rules 2011 (Cth), the Second Respondent file a notice of address for service within 28 days after 28 March 2024.

6.Until such time as the Second Respondent has filed an address for service, pursuant to r 10.44 of the of the Federal Court Rules 2011 (Cth), the Applicant has leave to serve any further documents in the proceedings on the Second Respondent by means of service by the processes in order 2 above.

7.The Applicant’s interlocutory application dated 15 March 2024 be otherwise dismissed.

8.The costs of the Applicant’s interlocutory application dated 15 March 2024 be reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’BRYAN J:

1. This proceeding was commenced on 6 February 2024. It is a representative proceeding brought under Part IVA of the Federal Court of Australia Act 1976 (Cth). The group members are persons who, not being institutional or professional investors, acquired one or more “contracts for difference” (CFDs) issued by the first respondent, International Capital Markets Pty Ltd (ICM), on ICM’s trading platform in the period between 6 February 2018 and 6 February 2024 and suffered loss or damage as a result.

2. The applicant alleges that, in connection with offering and issuing CFDs, ICM:

   (a)contravened the prohibitions against false, misleading or deceptive conduct in ss 1041H and 1041E of the Corporations Act 2001 (Cth) and ss 12DA and 12DB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act);

   (b)contravened the prohibitions against unconscionable conduct in s 12CB of the ASIC Act and s 991A of the Corporations Act;

   (c)contravened the prohibition against accepting conflicted remuneration in s 963E of the Corporations Act; and

   (d)contravened s 994E of the Corporations Act by failing to take reasonable steps that would result in retail product distribution conduct in relation to CFDs that was consistent with its Target Market Determination.

3. The applicant also alleges that the second respondent, Andrew Budzinski, is liable as an accessory to ICM’s contraventions.

4. The applicant has served the proceeding on ICM but to date has been unable to serve Mr Budzinski personally because he resides outside Australia. The applicant has applied for leave to serve Mr Budzinski outside of Australia by means of substituted service.

5. I considered the question of substituted service on Mr Budzinski in Bain v International Capital Markets Pty Ltd [2024] FCA 283. That proceeding is also a representative proceeding brought against ICM and Mr Budzinski and which makes similar allegations to the allegations made in this proceeding. The two proceedings are being case managed together. For the reasons explained in Bain, I made substituted service and related orders in that proceeding. There is no reason why the Court should take a different approach in this proceeding. Accordingly, I will make the same orders in this proceeding.   

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O’Bryan.

Associate:       

Dated:       22 March 2024