FEDERAL COURT OF AUSTRALIA
Bankruptcy Office of the Canton of Geneva (Trustee) v Amoma SÀRL (In Liquidation), in the matter of Amoma SÀRL [2023] FCA 1232
ORDERS
THE BANKRUPTCY OFFICE OF THE CANTON OF GENEVA IN ITS CAPACITY AS THE TRUSTEE AND REPRESENTATIVE OF THE BANKRUPT ESTATE OF AMOMA SÀRL (IN LIQUIDATION) Plaintiff | ||
AND: | Defendant | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Pursuant to Rule 15A.6(1)(a) of the Federal Court (Corporations) Rules 2000 (Cth) (Rules), the plaintiff forthwith serve notice of the filing of this proceeding, substantially in accordance with Form 20 of the Rules, on each creditor of the defendant known by the plaintiff, by email and/or pre-paid post.
2. Pursuant to rule 15A.6(1)(b) of the Rules, the plaintiff forthwith publish a notice of the filing of this proceeding substantially in accordance with Form 20 in:
(a) The Australian Financial Review, circulated nationally in Australia; and
(b) The Swiss Official Gazette of Commerce circulated in Switzerland.
3. The requirement for service on the defendant pursuant to rr 2.7 and 15A.3(4) of the Rules is dispensed with.
4. The plaintiff’s application for recognition be listed for hearing at 2:00pm on 27 October 2023, on an estimate of 1-2 hours.
5. The plaintiff’s costs of its interlocutory process are costs in the bankruptcy of the defendant.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MCEVOY J:
1 Amoma SÀRL (Amoma) is in liquidation and is subject to the control of the Cantonal Bankruptcy Office of Geneva (the plaintiff), which acts as the trustee and representative of Amoma’s bankrupt estate. The Geneva Bankruptcy Office was appointed on 28 October 2019 by an order of the Bankruptcy Court of the Canton of Geneva (in the Swiss Confederation) in proceeding JTPI/14932/2019.
2 By an originating application filed on 13 October 2023, the plaintiff seeks recognition of a foreign insolvency proceeding under Articles 15 and 17 of the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (the Model Law) as it is incorporated into Australian law by the Cross-Border Insolvency Act 2008 (Cth) (CBIA). The plaintiff also seeks relief under Article 21 of the Model Law.
3 In the alternative, the plaintiff seeks a declaration under s 581(2) of the Corporations Act 2001 (Cth) that the plaintiff and its bankruptcy case manager have standing, or alternatively orders authorising the plaintiff and its bankruptcy case manager to commence, a proceeding on behalf of the plaintiff and the defendant in Australia.
4 Before the Court this morning is an interlocutory application also filed by the plaintiff on 13 October 2023 which seeks orders in relation to the service and publication of the originating application, and ancillary matters.
5 For the purposes of its applications the plaintiff relies on the affidavits of Ms Piller affirmed on 31 July 2023, Mr Guenther affirmed on 3 October 2023, and Mr Pirkl affirmed on 4 October 2023. These affidavits contain the substance of the evidence relevant to the orders which are sought.
6 For present purposes, I am concerned with the interlocutory application directed to orders relating to service and publication of the application for recognition of the foreign insolvency proceeding. Those requirements arise by reason of r 15A.3(3) of the Federal Court (Corporations) Rules 2000 (Cth) (the Rules), which provides:
When filing the originating process, the foreign representative must file, but need not serve, an interlocutory process seeking directions as to service, and the Court may give directions about service, and make any incidental orders, that it thinks just.
7 The plaintiff seeks an order pursuant to r 15A.6(1)(a) of the Rules that the Court direct it to serve notice of the filing of this proceeding (substantially in accordance with Form 20 of the Rules) on each creditor of the defendant known by the plaintiff by email and/or pre-paid post.
8 The plaintiff also seeks an order pursuant to r 15A.6(1)(b) of the Rules that it publish a notice of the filing of this proceeding substantially in accordance with Form 20 in:
(a) the Australian Financial Review, circulated nationally in Australia; and
(b) the Swiss Official Gazette of Commerce, circulated in Switzerland.
9 It is submitted, and I accept, that there is utility in advertising in Switzerland as well as in Australia: see Board of Directors of Rizzo-Bottiglieri-De Carlini Armatori SpA v Rizzo-Bottiglieri-De Carlini Armatori SpA [2018] FCA 153 at [47] (Rares J).
10 Consistently with r 15A.6 of the Rules, the plaintiff will have the orders it seeks for service on creditors and the publication of notice of the filing of the application.
11 Rule 15A.3(4) of the Rules provides:
(4) The plaintiff must serve a copy of the originating process and the other documents mentioned in subrule (2):
(a) unless the Court otherwise orders, in accordance with subrule 2.7 (1); and
(b) on any other persons the Court may direct at the hearing of the interlocutory process.
12 Rule 2.7 of the Rules provides:
2.7 Service of originating process or interlocutory process and supporting affidavit
(1) As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on:
(a) each defendant (if any) to the proceeding; and
(b) if the corporation to which the proceeding relates is not a party to the proceeding—the corporation.
(2) As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on:
(a) each respondent (if any) to the application in the interlocutory process; and
(b) if the corporation to which the application in the interlocutory process relates is not a party to the application in the interlocutory process—the corporation.
13 The effect of r 2.7(1) of the Rules is to require service of copies of the originating court documents on the defendant company. As it is in liquidation, Amoma’s registered office is now in the care of the plaintiff’s offices. Compliance with r 2.7(1) of the Rules would thus require the plaintiff effectively to serve itself. It was submitted by the plaintiff, and I accept, that there would be no utility in this: see generally Kellow v Advanced Building & Construction Ltd (in liq) [2022] FCA 219 at [9] (Derrington J). Accordingly it is appropriate to dispense with the requirement for service on the defendant pursuant to rr 2.7 and 15A.3(4) of the Rules.
14 The plaintiff’s application for recognition will be listed for hearing at 2:00pm on 27 October 2023 on an estimate of 1-2 hours.
15 The plaintiff’s costs of this proceeding will be costs in the bankruptcy of the defendant.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. |
Associate:
