Federal Court of Australia

Nipps (Liquidator), in the matter of Ochre Group Holdings Limited (in liq) (No 2) [2023] FCA 700

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory process filed on 26 May 2023 is returnable ex parte.

2.    Pursuant to r 10.44 of the Federal Court Rules 2011 (Cth) (Rules), the plaintiff has leave to serve the summons for public examination issued to Mr Nathan John Featherby pursuant to orders made on 1 March 2023, which summons was filed on 3 April 2023 (Featherby Summons), and the orders made by Registrar Trott in these proceedings on 12 June 2023 (redacted to show only the orders applicable to Mr Featherby) on Mr Featherby outside Australia in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (the Hague Convention).

3.    Pursuant to r 10.24 of the Rules and r 11.4 of the Federal Court (Corporations) Rules 2000 (Cth), personal service of the Featherby Summons is dispensed with and, in lieu of personal service, the Featherby Summons may be served by taking the following steps by 5.00 pm AWST on 27 June 2023:

(a)    emailing the Featherby Summons to [redacted]; and

(b)    sending or causing to be sent an SMS message to the mobile telephone number [redacted] in the following terms:

'IMPORTANT: YOUR URGENT ATTENTION IS REQUIRED. DO NOT IGNORE THIS MESSAGE.

The Federal Court of Australia has issued a summons for public examination that directly impacts you. A sealed copy of the summons has been emailed to [redacted].

You can also obtain a sealed copy of the summons by requesting it be provided to you from any of the following people:

(i)    Ochre Group Holdings Limited's (in liquidation) liquidator, Jeremy Nipps of Cor Cordis by email at [redacted], or by calling [redacted]; or

(ii)    Mr Nipps' lawyer, Brendan Taylor by email at [redacted], or by calling [redacted].

It is very important that you do not ignore this message.'

4.    Pursuant to r 10.24 of the Rules, the Featherby Summons is taken to have been duly served when it is served in accordance with paragraph 3 above.

5.    A copy of the reasons for decision in relation to these orders and the reasons given for the orders made on 22 June 2023 must be served in accordance with the methods in paragraph 3 above on Mr Featherby within 3 business days of the publication of those reasons.

6.    The date and time by which Mr Featherby is to produce documents pursuant to the Featherby Summons is extended to 3.00 pm AWST on 17 July 2023.

7.    The Featherby Summons is adjourned to 3.00 pm AWST on 17 July 2023.

8.    Any requirement that Mr Featherby attend before the Court at 2.00 pm AWST on Monday 26 June 2023 is dispensed with.

9.    The costs of and incidental to the application are the plaintiff's costs in the cause.

10.    Under s 37AI of the Federal Court of Australia Act 1976 (Cth) and until 5.00 pm AWST on 30 June 2023 or further order, no person other than the plaintiff and his advisors may have access to the affidavit of James Alexander Raymond sworn 23 June 2023.

11.    The matter is adjourned to 9.30 am AWST on 30 June 2023.

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

REASONS FOR JUDGMENT

(edited from the transcript)

JACKSON J:

1    On 22 June 2023 I made orders giving leave to serve Mr Made Sumarya overseas and for substituted service on Mr Sumarya. He is a director of the company that is the subject of this proceeding, Ochre Group Holdings Limited (in liquidation). The documents to be served were a summons for public examination issued on the application of the liquidator of the company, the plaintiff Jeremy Nipps, and associated documents.

2    Mr Nipps made application at the same time for leave to serve overseas and for substituted service on a former director of the company, Mr Nathan Featherby. Mr Featherby was a director of the company from March 2011 until June 2019, being within two years of when the winding-up of the company began. The application is based on an affidavit of James Alexander Raymond sworn on 25 May 2023, as well as evidence in the original affidavit of Mr Nipps filed in support of the application for the issue of examination summonses. Mr Featherby continued to be heavily involved in the company after his resignation as a director in June 2019. Other background to the matter appears in the reasons I delivered in Nipps (Liquidator), in the matter of Ochre Group Holdings Limited (in liq) [2023] FCA 687 (Nipps (No 1)) in connection with the orders for service upon Mr Sumarya. That background will not be repeated now.

3    There is evidence in Mr Raymond's affidavit of 25 May 2023 in relation to efforts to serve the examination summons on Mr Featherby. The summons is addressed to Mr Featherby at an address in Duncraig, Western Australia, which was his last known place of residence in Australia, as appears from ASIC records. A process server attempted to serve the summons on Mr Featherby at that address in April 2023. However, on attending at the address, the process server spoke to Mr Featherby's mother, who said that he now lives in South America and she does not have any contact with him.

4    Mr Nipps relies on a further affidavit of Mr Raymond sworn on 23 June 2023 in relation to Mr Featherby's current whereabouts. Correspondence annexed to that affidavit indicates that he may now be based in Argentina and provides a locality but not a specific address for him in that country. However the currency of that information, including whether Mr Featherby ever lived at that locality, let alone whether he still lives there, is unknown.

5    There is also evidence in the affidavit of 23 June 2023 suggesting that Mr Featherby has used a certain email address as recently as late 2022. And there is evidence in the affidavit indicating that Mr Featherby uses a mobile phone number, which appears to be an Argentinian number.

6    On the assumption that Mr Featherby is in Argentina, Mr Raymond's affidavit of 25 May 2023 also contains evidence to the effect that Argentina is a signatory to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 (Hague Convention) but opposes article 10 of the Hague Convention. The relevance of that opposition is that Argentina has not agreed that service by post will comply with its obligations under the Convention, although in any event, as indicated, there is no specific address for Mr Featherby at which service by post could be effected.

7    The outcome then would be that if Mr Featherby were to be served in accordance with the Hague Convention, it would be necessary to provide the documents to be served to what is called the Central Authority for Argentina which, on the evidence, is the Ministry of Foreign Affairs, International Trade and Worship. Mr Raymond says in the affidavit, and I accept, that it is likely that attempting to effect service on Mr Featherby via that method may result in substantial delay. That delay could only be exacerbated by the fact that there is no precise information as to Mr Featherby's current whereabouts.

8    I outlined many of the principles applicable to applications of this kind in Nipps (No 1) in relation to service upon Mr Sumarya and will not repeat those principles here. It is only necessary to add that when the Hague Convention applies, either of r 10.24 or r 10.49 of the Federal Court Rules 2011 (Cth) can provide a basis for ordering substituted service overseas and r 10.49 does not apply to the exclusion of r 10.24. It is also open to the Court under r 1.34 of the Federal Court Rules to dispense with the requirement in r 10.49 that service on a person in a foreign country was not successful: see Deputy Commissioner of Taxation v Ranguta Limited [2022] FCA 1572 at [26(2)]. In the circumstances, I consider it appropriate to proceed under r 10.24, as that is the rule under which the orders for leave for substituted service on Mr Sumarya were made.

9    As indicated in Nipps (No 1) in relation to service upon Mr Sumarya, there is clearly a substantial connection between Australia and the current proceeding which justifies giving leave to serve the examination summons outside Australia under r 10.44 of the Federal Court Rules. That is so applying the requirements of r 10.43 as factors relevant to the exercise of the discretion, as I have indicated I consider appropriate in these circumstances. Further, there have been attempts to serve Mr Featherby in Australia which have not borne fruit, and investigations of Mr Raymond have indicated that Mr Featherby is likely to be in South America, quite possibly Argentina, but it has not been possible to identify his exact whereabouts.

10    On that basis, orders for substituted service are justified because it will not be sensible or realistic to effect personal service on Mr Featherby. Certainly it will not be sensible or realistic to effect such personal service in any time shorter than a matter of months. As indicated in Nipps (No 1), that is an important consideration in this matter, where it is in the interests of the creditors of the company and the public interest for the liquidator to be able to progress his investigations in a duly expeditious way.

11    The evidence that I have outlined indicates that in all probability, service of the documents on Mr Featherby by means of the two ways of contacting him furnished by the evidence, namely, an email address and an Argentinian mobile phone number, will bring the documents and their contents to Mr Featherby's attention. For those reasons, orders largely in the terms sought will be made.

Associate:

Dated:    27 June 2023