FEDERAL COURT OF AUSTRALIA

Kazar (liquidator) v Doshi, in the matter of PF1 Solutions Pty Ltd (in liq) [2024] FCA 577

ORDERS

THE COURT NOTES THAT:

In this order the Documents are:

(a)    the originating application, the statement of claim and the genuine steps statement filed by the plaintiffs on 15 April 2024;

(b)    the plaintiffs’ interlocutory application filed on 6 May 2024;

(c)    the affidavit of Ms Kaylah Noonan sworn on 29 April 2024;

(d)    the affidavit of Ms Madeline Louise Ness affirmed on 6 May 2024;

(e)    the plaintiffs’ outline of submissions filed on 21 May 2024;

(f)    these Orders;

(g)    these reasons for judgment; and

(h)    a notice of the kind referred to in r 10.43B of the Federal Court Rules 2011 (Cth).

THE COURT ORDERS THAT:

1.    The requirement for personal service of the originating application upon the defendants be dispensed with.

2.    Pursuant to r 10.44 of the Federal Court Rules 2011 (Cth) the plaintiffs have leave to serve the Documents (other than the originating application – in respect of which leave is not required) outside Australia.

3.    Pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), the Documents be served on the defendants in the following manner:

(a)    emailing a copy of the Documents to kaldoshi0@gmail.com;

(b)    delivering a copy of the Documents to Chamberlains Law Firm at 224 Bunda Street, Canberra ACT 2601; and

(c)    emailing a copy of the Documents to neil.bookseller@chamberlains.com.au.

4.    The plaintiffs serve the Documents on each of the defendants pursuant to the means specified in order 3 above by 5:00pm on 11 June 2024.

5.    Service of the Documents on the defendants shall be deemed to have occurred at the end of three (3) business days after compliance with orders 3 and 4 above.

6.    Service of further documents in this proceeding upon a defendant who has not filed a notice of address for service may be effected by the plaintiffs sending a copy of those documents to kaldoshi0@gmail.com.

7.    The proceeding be listed for a case management hearing at 9:30am on 16 July 2024.

8.    There be liberty to apply on 48 hours’ notice.

9.    Costs of the plaintiffs’ interlocutory application filed on 6 May 2024 be reserved.

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

REASONS FOR JUDGMENT

GOODMAN J

A.     INTRODUCTION AND BACKGROUND

1    The first plaintiff is, and since 28 September 2018 has been, the liquidator of the second plaintiff.

2    Following his appointment, the first plaintiff commenced proceeding ACD 35 of 2022, pursuant to which he conducted examinations.

3    By an originating application filed in the present proceeding on 15 April 2024, which is supported by a statement of claim filed on the same date, the plaintiffs contend, in summary, that:

(1)    the first defendant (Mr Doshi) and the second defendant (Ms Ting), who are married, were at all material times employees of the second plaintiff and joint and several trustees and beneficiaries of the Super Bullearish Fund, a self-managed superannuation fund. The plaintiffs also contend that Mr Doshi was the sole director of the second plaintiff for some of the material times;

(2)    funds belonging to the second plaintiff were transferred from the second plaintiff to Mr Doshi and Ms Ting in their personal capacities and in their capacities as trustees of the Fund. Mr Doshi and Ms Ting participated in such transfers and the receipt of the transferred funds;

(3)    funds belonging to the second plaintiff were applied by Mr Doshi and Ms Ting, inter alia, to purchase parcels of real property in the names of Mr Doshi and Ms Ting in their personal capacities and in their capacities as trustees of the Fund (including a property located at Nicholls in the Australian Capital Territory, purchased in the names of both Mr Doshi and Ms Ting (Nicholls property));

(4)    in so doing, Mr Doshi and Ms Ting contravened statutory, contractual, common law and equitable duties or obligations owed by them to the second plaintiff;

(5)    each of Mr Doshi and Ms Ting is directly or accessorily liable for such contraventions; and

(6)    the plaintiffs are entitled to various forms of relief, including relief pursuant to the Corporations Act 2001 (Cth), at common law and in equity.

4    By an interlocutory application filed on 6 May 2024, the plaintiffs seek orders for substituted service of the originating application and other documents. The interlocutory application is supported by an affidavit of Ms Madeleine Louise Ness, a solicitor in the employ of the solicitors for the plaintiffs, affirmed on 6 May 2024; and an affidavit of Ms Kaylah Noonan, a licenced process server engaged by the plaintiffs, sworn on 29 April 2024. Those affidavits establish the following salient facts:

(1)    on 14 October 2022, and in connection with proceeding ACD 35 of 2022, Mr Doshi sent an email to Ms Ness from the email address kaldoshi0@gmail.com;

(2)    on 19 March 2024, Mr Neil Bookseller, a solicitor in the employ of Chamberlains Law Firm, solicitors, sent an email to Ms Ness indicating that he had instructions to act for Mr Doshi and Ms Ting both personally and in their capacity as trustees of the Fund;

(3)    on 9 April 2024, following further correspondence between Ms Ness and Mr Bookseller, Ms Ness sent an email to Mr Bookseller in which she indicated that she held instructions to commence proceedings forthwith and asked Mr Bookseller to indicate whether he had instructions to accept service;

(4)    on 11 April 2024, Mr Bookseller informed Ms Ness by email that Mr Doshi and Ms Ting had relocated overseas, and that Chamberlains no longer held instructions to act for them;

(5)    on 23 April 2024, Ms Noonan attended the Nicholls property in order to effect service of the originating application, statement of claim and genuine steps statement filed by the plaintiffs. She was told by a female person at that address that: (a) the female person believed Mr Doshi and Ms Ting owned the Nicholls property; (b) the female person rented the property from Mr Doshi and Ms Ting; (c) the female person had moved into that property two weeks beforehand; (d) the female person had received mail addressed to Mr Doshi and Ms Ting at the Nicholls property; (e) the female person had no forwarding address for Mr Doshi and Ms Ting; and (f) the rental of the Nicholls property was managed by Archer Canberra;

(6)    on 1 May 2024, Ms Ness sent an email addressed to Mr Doshi at kaldoshi0@gmail.com: (a) stating that she had been advised by Chamberlains that they no longer held instructions to act for him; (b) stating that she wished to serve legal documents upon him; and (c) asking him to provide to her a current residential address to enable her to arrange for personal service of the documents. No response was received;

(7)    on 2 and 3 May 2024, Ms Ness made contact with Archer Canberra, seeking an address for Mr Doshi and Ms Ting, and was told that the address held by Archer Canberra and which Archer Canberra would use to communicate with Mr Doshi and Ms Ting with respect to the Nicholls property is kaldoshi0@gmail.com; and

(8)    the plaintiffs have been unable to make any attempts at personal service at the workplaces of Mr Doshi and Ms Ting as this information is not known to the plaintiffs and has not otherwise been able to be ascertained by online searches and enquiries.

B.     CONSIDERATION

5    The nature of the causes of action pleaded by the plaintiffs mean that many of the sub-paragraphs of r 10.42 of the Federal Court Rules 2011 (Cth) are satisfied, with the consequence that the originating application may be served outside of Australia without leave to do so. Leave to serve other documents outside of Australia may be given under r 10.44 of the Rules.

6    Rule 8.06 of the Rules requires that a plaintiff personally serve an originating application on each defendant as soon as practicable and at least five days before the return date of the application. Rule 10.01 of the Rules provides that a document that is to be served personally on an individual must be served by leaving the document with the individual. The Court also has the power to dispense with compliance with rr 8.06 and 10.01: r 1.34; Commissioner of Taxation v Zeitouni [2013] FCA 1011; (2013) 306 ALR 603 at 622 [97] (Katzmann J).

7    Rule 10.24 of the Rules allows for substituted service. It provides:

If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order:

(a)    substituting another method of service; or

(b)    specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

(c)    specifying that the document is taken to have been served:

(i)    on the happening of a specified event; or

(ii)    at the end of a specified time.

8    Rule 10.24 is available even though Mr Doshi and Ms Ting have left Australia, and the plaintiffs are not required to proceed only via r 10.49 (which deals specifically with substituted service on a person outside of Australia): see, e.g., The Noco Company v Hong Kong Haowei Technology Co, Ltd [2023] FCA 533 at [11] to [18] (Moshinsky J).

9    Rule 10.24 requires consideration of whether it is not practicable to effect personal service of the application upon Mr Doshi and Ms Ting. Whether such service is not practicable is determined by reference to the facts of the case at hand. In this regard, inconvenience is insufficient but it is not necessary for a plaintiff to prove that it is impossible or futile to effect personal service. It is also not necessary to adduce evidence of a failed attempt to effect personal service or that such service is not possible: see Taylor v Hatzipapas, in the matter of Hatzipapas [2023] FCA 153 at [13] and the authorities there cited.

10    For the following reasons, I am satisfied that it is not practicable for the plaintiffs to effect personal service on Mr Doshi and Ms Ting. First, the plaintiffs attempted service at the Nicholls property, being a property owned by Mr Doshi and Ms Ting and one which was until recently, apparently occupied by Mr Doshi and Ms Ting. That attempt was unsuccessful. Secondly, Mr Doshi and Ms Ting have left Australia, and the plaintiffs have been unable to ascertain a new address at which to effect personal service upon them. Thirdly, effective personal service upon Mr Doshi and Ms Ting via service upon Chamberlains is not possible as that firm no longer acts for Mr Doshi and Ms Ting.

11    Although not expressly required by r 10.24, it is also appropriate to consider whether the proposed method of substituted service will likely bring the originating application to the attention of Mr Doshi and Ms Ting. If so, that is a factor in favour of making an order for substituted service. In this regard, it appears likely that documents sent to kaldoshi0@gmail.com will come to the attention of Mr Doshi and Ms Ting as: (1) this email address has previously been used by Mr Doshi to correspond with the solicitors for the plaintiffs; (2) this email address was provided by Mr Doshi and Ms Ting to Archer Canberra as their address for correspondence; and (3) Mr Doshi and Ms Ting are married and joint trustees of the Fund, such that it is likely that correspondence sent to kaldoshi0@gmail.com will come to the attention of both Mr Doshi and Ms Ting, despite that address being an address containing only the name of Mr Doshi.

12    The orders sought include orders that relevant documents (including the originating application) be served upon Mr Bookseller at Chamberlains. Although I am not satisfied that this, of itself, would make it likely that the originating application would be brought to the attention of Mr Doshi and Ms Ting in circumstances where Mr Bookseller’s instructions have been withdrawn, the inclusion of such orders may increase the likelihood that Mr Doshi and Ms Ting will become aware of the relevant documents. Thus, I will make orders requiring service upon Mr Bookseller and Chamberlains.

C.     CONCLUSION

13    For the reasons set out above, I will make orders for substituted service and ancillary orders.

Associate:

Dated:    4 June 2024