Federal Court of Australia

Mccabe, in the matter of Sargon Capital Pty Ltd (receivers and managers appointed) (in liq) (No 2) [2023] FCA 1465

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 10.44 of the Federal Court Rules 2011, the plaintiffs have leave to serve the following documents:

(a)    the summons for examination and orders for production addressed to Anthony Owen (Mr Owen) issued pursuant to order 3(a) of the orders made by Judicial Registrar Luxton on 20 January 2023 (as amended pursuant to order 4(a) of the orders made by Judicial Registrar Luxton on 8 November 2023);

(b)    a sealed copy of the orders made by Judicial Registrar Luxton on 20 January 2023;

(c)    a sealed copy of the orders made by Judicial Registrar Luxton on 8 November 2023; and

(d)    a sealed copy of these orders;

(collectively, the Owen Documents)

upon Mr Owen in the United States of America by:

(e)    international pre-paid registered post addressed to Mr Owen at the following addresses:

(i)    722 Simpson St, Evanston, Illinois 60201, United States of America;

(ii)    c/- Dom Capital Group, 1165 N Clark St #412, Chicago, Illinois 60610, United States of America; and

(iii)    c/- Little Joe Ventures, 1306 East Imperial Avenue, El Segundo CA 90245, United States of America;

in accordance with Article 10(a) of 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); and

(f)    by sending a copy of the Owen Documents by direct message to the Linkedin profile with public URL “linkedin.com/in/tony-owen-651aa68.

2.    Mr Owen contact the assistant to Judicial Registrar Luxton (assistant.luxtonr@fedcourt.gov.au) so that the necessary technical arrangements can be made for his examination by way of Microsoft Teams and production of documents.

3.    Pursuant to r 10.44 of the Rules, the plaintiffs have leave to serve the following documents:

(a)    the summons for examination and orders for production addressed to Edward Paul Wasserman (Mr Wasserman) issued pursuant to order 3(b) of the orders made by Judicial Registrar Luxton on 20 January 2023 (as amended pursuant to order 4(b) of the orders made by Judicial Registrar Luxton on 8 November 2023);

(b)    a sealed copy of the orders made by Judicial Registrar Luxton on 20 January 2023;

(c)    a sealed copy of the orders made by Judicial Registrar Luxton on 8 November 2023; and

(d)    a sealed copy of these orders;

(collectively, the Wasserman Documents)

upon Mr Wasserman in the United States of America by:

(e)    international pre-paid registered post addressed to Mr Wasserman at 210 West 11th Street, New York City, New York, 10014 United States of America, in accordance with Article 10(a) of the Hague Convention; and

(f)    sending copies of the Wasserman Documents by direct message to the Linkedin profile with public URL “linkedin.com/in/teddy-wasserman-434337/’.

4.    Mr Wasserman contact the assistant to Judicial Registrar Luxton (assistant.luxtonr@fedcourt.gov.au) so that the necessary technical arrangements can be made for his examination by way of Microsoft Teams and production of documents.

5.    Pursuant to r 10.44 of the Rules, the plaintiffs have leave to serve the following documents:

(a)    the summons for examination and orders for production addressed to Robert John Rankin (Mr Rankin) issued pursuant to order 3(d) of the orders made by Judicial Registrar Luxton on 20 January 2023 (as amended pursuant to order 4(c) made by Judicial Registrar Luxton on 8 November 2023);

(b)    a sealed copy of the orders made by Judicial Registrar Luxton on 20 January 2023;

(c)    a sealed copy of the orders made by Judicial Registrar Luxton on 8 November 2023; and

(d)    a sealed copy of these orders;

(collectively, the Rankin Documents)

upon Mr Rankin in the United Kingdom of Great Britain and Northern Ireland by:

(e)    international pre-paid registered post addressed to Mr Rankin at the following addressees:

(i)    The Old Rectory, Main Road, Broughton OX15 5ED, United Kingdom; and

(ii)    Gloucester House, 399 Silbury Boulevard, Milton Keynes, Buckinghamshire, England, MK9 2AH, United Kingdom;

in accordance with section 1140 of the Companies Act 2006 (UK) and, further or alternatively, Article 10(a) of the Hague Convention; and

(f)    sending copies of the Rankin Documents by direct message to the Linkedin profile with public URL “linkedin.com/in/robert-rankin-1b141b156/’

6.    Mr Rankin contact the assistant to Judicial Registrar Luxton (assistant.luxtonr@fedcourt.gov.au) so that the necessary technical arrangements can be made for his examination by way of Microsoft Teams and production of documents.

7.    Pursuant to r 10.44 of the Rules, the plaintiffs have leave to serve the following documents:

(a)    the summons for examination addressed to Aron Ping D’Souza (Mr D’Souza) issued pursuant to order 5(a) of the orders made by Judicial Registrar Luxton on 20 January 2023 (as amended pursuant to order 1 of the orders made by Judicial Registrar Luxton on 22 November 2023);

(b)    a sealed copy of the orders made by Judicial Registrar Luxton on 20 January 2023;

(c)    a sealed copy of the orders made by Judicial Registrar Luxton on 8 November 2023;

(d)    a sealed copy of the orders made by Judicial Registrar Luxton on 22 November 2023; and

(e)    a sealed copy of these orders;

(collectively, the D’Souza Documents)

upon Mr D’Souza in the United Kingdom of Great Britain and Northern Ireland by:

(f)    international pre-paid registered post addressed to Mr D’Souza at “The Copper Room”, Deva City Office Park, Trinity Way, Manchester, United Kingdom, M3 7BG, in accordance with section 1140 of the Companies Act 2006 (UK) and, further or alternatively, Article 10(a) of the Hague Convention;

(g)    sending a copy by direct message to the Linkedin profile with public URL “linkedin.com/in/arondsouza/’; and

(h)    sending a copy by direct message to the Instagram profile with username “Aronpingdsouza”.

8.    Mr D’Souza contact the assistant to Judicial Registrar Luxton (assistant.luxtonr@fedcourt.gov.au) so that the necessary technical arrangements can be made for his examination by way of Microsoft Teams and production of documents.

9.    Pursuant to r 10.44 of the Rules, the plaintiffs have leave to serve the following documents:

(a)    a sealed copy of the orders made by Judicial Registrar Luxton on 8 November 2023; and

(b)    a sealed copy of these orders;

upon Charles Matthew Danzeisen (Mr Danzeisen) in the United States of America by international pre-paid registered post addressed to Mr Danzeisen at 9200 West Sunset Boulevarde, #1110, West Hollywood, CA 90069, United States of America, in accordance with Article 10(a) of the Hague Convention.

10.    Mr Danzeisen contact the assistant to Judicial Registrar Luxton (assistant.luxtonr@fedcourt.gov.au) so that the necessary technical arrangements can be made for his examination by way of Microsoft Teams and production of documents.

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

REASONS FOR JUDGMENT

STEWART J:

1    The plaintiffs are the liquidators of Sargon Capital Pty Ltd. On 20 January 2023, they obtained orders from a Registrar of the Court under ss 596A and 596B of the Corporations Act 2021 (Cth) for the issue of summonses for examination and, in some cases, orders for production against certain individuals. Those individuals include the following:

(1)    Anthony Owen;

(2)    Edward Paul Wasserman;

(3)    Robert John Rankin;

(4)    Aron Ping D’Souza; and

(5)    Charles Matthew Danzeisen.

2    On 16 February 2023, Cheeseman J made orders authorising the personal service of summonses for examination and orders for production on each of those individuals overseas, save for Mr D’Souza who was at that time believed to be in Australia. See McCabe, in the matter of Sargon Capital Pty Limited (receivers and managers appointed) (in liq) [2023] FCA 112.

3    The liquidators have made various attempts at personal service overseas on Messrs Owen, Wasserman, Rankin and Danzeisen, but they have failed save in respect of Mr Danzeisen. Personal service was effected on him in West Hollywood, California, on 22 March 2023. I am satisfied on the evidence that the liquidators have made all reasonable attempts to achieve personal service on Messrs Owen, Wasserman and Rankin. In respect of Messrs Owen and Wasserman, that was in the United States of America, and in respect of Mr Rankin it was in the United Kingdom of Great Britain and Northern Ireland.

4    The liquidators have also subsequently learned that Mr D’Souza is not in Australia and they have ascertained an address for him in Manchester, United Kingdom.

5    Subsequent to the orders on 16 February 2023, there have also been orders by a Registrar adjourning the examinations and, in some cases, amending the orders for production, with the result that the summonses for examination and orders for production in their original form as authorised for service overseas by Cheeseman J have in effect changed.

6    In the result, the liquidators now seek orders pursuant to r 10.44 of the Federal Court Rules 2011 (Cth) for service of summonses for examination and, where applicable, orders for production other than by personal service on Messrs Owen and Wasserman in the United States and Messrs Rankin and D’Souza in the United Kingdom. They also seek orders for the service of the amended summons for examination on Mr Danzeisen.

7    I do not doubt that the Court has the power to authorise the service that is sought, and I am satisfied as to the justification for the methods of service other than personal service and that they are available and appropriate under the applicable rules. However, it is necessary to exercise caution in making orders for service out of the jurisdiction of processes of the court on persons not otherwise subject to the Court’s jurisdiction as impinging on a foreign state’s sovereignty: Krejci in his capacity as liquidator of Myoora Land Pty Ltd (in liq) v Myoora Land Pty Ltd [2023] FCA 620 at [31] per Rares J. There are also considerations with regard to the difficulty of enforcing any such processes, including the examination summonses and orders for production in this case: Stemcor (A/sia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 at [12]-[13] per Allsop J.

8    In those circumstances, it is necessary to have close regard to what connection there is between the person sought to be summoned and the company’s examinable affairs: Myoora at [32] citing Waller v Freehills [2009] FCAFC 89; 177 FCR 507 at [61].

9    In the present case, each of the people subject to the orders that are sought was a director of the company. Four of them were directors at a time that makes them susceptible to claims for insolvent trading. Those are the claims that the liquidators are investigating by the examinations that they intend holding. The fifth person, Mr Danzeisen, ceased to be a director more than three years prior to the relevant date. However, as a former director it is probable that he may have knowledge that will bear on the liquidators’ investigations. For obvious reasons, I do not wish to go into these matters in any particular detail. The short point is that I am satisfied that the liquidators’ have established sufficient justification for the examinations in respect of each of the people concerned, and that each was a director of the company, being an Australian registered company. Therefore, each was subject to the laws of Australia in the conduct of their directorships. Moreover, the evidence shows that the vast majority, if not all, the creditors of the company are Australian.

10    In those circumstances, I am satisfied that there is more than adequate connection between the people sought to be examined and this jurisdiction, including the subject matter of the proposed examinations.

11    I am therefore satisfied that appropriate orders should be made.

Associate:

Dated:    23 November 2023