FEDERAL COURT OF AUSTRALIA

Shield Holdings Australia Pty Ltd (in liq) v Binetter [2025] FCA 451

ORDERS

THE COURT ORDERS THAT:

Joinder of Samantha Ellen Kelliher

1.    Pursuant to r 9.05(1) of the Federal Court Rules 2011 (Cth) (Rules), Samantha Ellen Kelliher be joined as the second respondent to the proceeding.

Overseas service

2.    Pursuant to r 10.44 of the Rules, leave be granted to the applicant to serve the following documents on each of the first respondent and the second respondent in the United States of America:

(a)    applicant’s genuine steps statement dated 12 November 2024 and filed in this proceeding;

(b)    affidavit of Alan Walker affirmed on 11 November 2024 and filed in this proceeding;

(c)    exhibit AW-1 to the affidavit of Alan Walker affirmed on 11 November 2024;

(d)    affidavit of Alan Walker affirmed on 2 December 2024 and filed in this proceeding;

(e)    the interlocutory application dated 1 April 2025 and filed in these proceedings; and

(f)    sealed copies of all orders made in this proceeding, including these orders made pursuant to the interlocutory application,

(together, Supplementary Documents).

Substituted service

3.    Pursuant to r 10.24 and/or alternatively r 1.34 and r 10.49 of the Rules, leave be granted to the applicant to serve the:

(a)    originating application lodged on 11 November 2024 and accepted for filing on 12 November 2024 in this proceeding;

(b)    notice to person served outside Australia dated 1 April 2025 addressed to the first respondent, being Form 26A, which is required to be served pursuant to r 10.43B of the Rules;

(c)    statement of claim dated 12 November 2024 and filed in this proceeding; and

(d)    Supplementary Documents,

(together, Binetter Documents),

    by

(e)    placing a copy of the Binetter Documents for the first respondent in a sealed envelope and leaving them at the office address of Chris Ardagna of Pitcher Partners Legal NSW Pty Ltd at Level 16, Tower 2, 201 Sussex Street, Sydney NSW 2000;

(f)    sending a copy of the Binetter Documents to the email address of Chris Ardagna (being chris.ardagna@pitcher.com.au);

(g)    placing a copy of the Binetter Documents for the first respondent in a sealed envelope and leaving them at the office address of Malcolm Stewart and Sadhika Menon of Speed and Stracey Lawyers at Level 8, 1 Chifley Square, Sydney NSW 2000;

(h)    sending a copy of the Binetter Documents to the email addresses of Malcolm Stewart and Sadhika Menon of Speed and Stracey Lawyers (being MalcolmS@sslaw.com.au, mstewart@sslaw.com.au, and Sadhikam@sslaw.com.au, respectively);

(i)    sending a copy of the Binetter Documents to the email address binetter@me.com; and

(j)    sending a copy of the Binetter Documents to the email address samanthak222@gmail.com.

4.    Pursuant to r 10.24(c) and/or alternatively r 10.49(c) of the Rules, the Binetter Documents are taken to have been served on the first respondent at the end of the seventh business day after the documents were provided pursuant to Order 3(g) of these orders.

5.    Pursuant to r 10.24 and/or alternatively r 1.34 and r 10.49 of the Rules, leave be granted to the applicant to serve the:

(a)    originating application lodged on 11 November 2024 and accepted for filing on 12 November 2024 in this proceeding;

(b)    notice to person served outside Australia dated 1 April 2025 addressed to the second respondent, being Form 26A, which is required to be served pursuant to r 10.43B of the Rules;

(c)    statement of claim dated 12 November 2024 and filed in this proceeding; and

(d)    Supplementary Documents,

(together, Kelliher Documents),

    by:

(e)    placing a copy of the Kelliher Documents for the second respondent in a sealed envelope and leaving them at the office address of Chris Ardagna of Pitcher Partners Legal NSW Pty Ltd at Level 16, Tower 2, 201 Sussex Street, Sydney NSW 2000;

(f)    sending a copy of the Kelliher Documents to the email address of Chris Ardagna, being chris.ardagna@pitcher.com.au;

(g)    sending a copy of the Kelliher Documents to the email address samanthak222@gmail.com; and

(h)    sending a copy of the Kelliher Documents to the email address binetter@me.com.

6.    Pursuant to r 10.24(c) and/or alternatively r 10.49(c) of the Rules, the Kelliher Documents are taken to have been served on the second respondent at the end of the seventh business day after the documents were provided pursuant to Order 5(e) of these orders.

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

REASONS FOR JUDGMENT

HALLEY J:

A.     INTRODUCTION

1    The applicant (Shield Holdings Australia Pty Ltd (in liq)) by an interlocutory application filed on 1 April 2025 seeks interlocutory orders for joinder, service outside the jurisdiction and substituted service.

2    Shield relies on affidavits of Aaron Kam sworn on 1 April 2025, 17 April 2025 and 24 April 2025 and submissions prepared by Mr S D Puttick of counsel.

3    At Shield’s request, this application has been dealt with on the papers.

4    For the reasons that follow, I am satisfied that the interlocutory orders sought by Shield should be made.

B.     BACKGROUND

5    As pleaded in the statement of claim, Shield is a proprietary company that was incorporated in New South Wales on 12 June 1997, deregistered on 1 November 2020, reinstated on 8 April 2024 and upon reinstatement, and was wound up pursuant to s 461(1)(k) of the Corporations Act 2001 (Cth) (Corporations Act).

6    This proceeding is concerned with the validity of a deed of release dated 12 November 2018 (Deed of Release) by which Shield purportedly released certain “Debtors” from the repayment of “Loans” and any other “Claims” which Shield may have against one or more “Debtors”. “Debtors” under the Deed of Release is alleged to mean the first respondent (Mr Binetter), Samantha Ellen Kelliher, and various “Covenant Beneficiaries”. Shield, Mr Binetter, and Ms Kelliher were parties to the Deed of Release and it otherwise purported to operate as a deed poll in favour of the “Covenant Beneficiaries”.

7    Shield alleges that Mr Binetter, as Shield’s sole director and company secretary, caused Shield (purportedly) to enter into the Deed of Release. Shield alleges that Mr Binetter breached general law and statutory duties he owed to Shield, in causing Shield to enter the Deed of Release in the circumstances pleaded in the statement of claim filed on 12 November 2024.

8    Shield seeks a declaration that, to the extent the Deed of Release purports to release claims which Shield had or may have against Mr Binetter, Ms Kelliher and other “Debtors”, it is void and unenforceable and/or is to be read down or severed; and orders in equity rescinding the deed poll granted by Shield in favour of the “Covenant Beneficiaries”. Shield also seeks a declaration in equity and/or under s 21 of the Federal Court of Australia Act 1976 (Cth) that Mr Binetter breached his duties to Shield by causing Shield to grant releases to Mr Binetter and the other “Debtors”. Shield does not allege any wrongdoing by Ms Kelliher and no relief is sought directly against Ms Kelliher.

9    The matters giving rise to this proceeding are the subject of various other proceedings in this Court, including proceeding NSD 1023 of 2022 (2022 Proceedings).

10    On 5 April 2024, Alan Walker of WLP Restructuring was appointed as liquidator of Shield pursuant to orders made in the 2022 Proceedings.

11    On 11 November 2024, Shield lodged the originating application in this proceeding, which was accepted for filing on 12 November 2024.

12    On 9 January 2025, after hearing argument on 5 different dates between 13 June 2024 and 20 September 2024, Cheeseman J delivered reasons and made orders in the 2022 Proceedings appointing John Sheahan as a special purpose liquidator of Shield: Ligon 158 Pty Limited (in liq) v Shield Holdings Australia Pty Ltd (in liq) (Special Purpose Liquidator) [2025] FCA 3. Mr Binetter actively participated in the hearings before her Honour and was represented by senior counsel, instructed by Pitcher Partners Legal NSW Pty Ltd (Pitcher Partners).

13    On 6 February 2025, Shield was served with other related proceedings that had been commenced by Ligon 158 Pty Limited (in liquidation) against Mr Binetter (as the first respondent), Ms Kelliher (as the second respondent), and Shield (as the third respondent) in proceeding SAD 205 of 2024 (Ligon Proceedings).

14    On 4 February 2025, O’Sullivan J made orders for substituted service on Mr Binetter and Ms Kelliher in the Ligon Proceedings.

15    In early March 2025, Mr Binetter and Ms Kelliher each filed and served interlocutory applications in the Ligon Proceedings (together with supporting affidavits and notices of address for service) seeking to set aside service and otherwise dismiss or stay the proceedings (Ligon Interlocutory Applications).

16    On 12 March 2025, the Ligon Interlocutory Applications were listed for a case management hearing before O’Sullivan J. The Ligon Interlocutory Applications have now been listed for hearing by his Honour on 24 June 2025.

17    On 14 March 2025, the time for service of the originating application and statement of claim in this proceeding on Mr Binetter was extended to 4.30 pm on Friday, 30 May 2025. This was the third occasion the time for service of the originating application and statement of claim had been extended.

C.     JOINDER OF MS KELLIHER

C.1.     Overview

18    Shield seeks to join Ms Kelliher as the second respondent to the proceeding pursuant to r 9.05(1) of the Federal Court Rules 2011 (Cth) (Rules).

C.2.     Legal principles

19    Rule 9.05(1) relevantly provides that a person may be joined to a proceeding if the person ought to have been joined to a proceeding, their joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined, or they should be joined in order to enable determination of a related dispute to avoid a multiplicity of proceedings.

C.3.     Consideration

20    As noted above, Ms Kelliher was a party to the Deed of Release but she was not a director of Shield at the time the Deed of Release was entered into and Shield does not allege any wrongdoing by her or seek any relief against her.

21    Shield is concerned, however, that it might subsequently be contended by Mr Binetter that the proceeding should be dismissed because Ms Kelliher is a necessary party to the proceeding, as a party to the Deed of Release, but she has not been joined. The concern is stated to have arisen because of contentions advanced by counsel for Ms Kelliher and Mr Binetter in the Ligon Proceedings in which the applicants seek orders setting aside certain provisions in a deed of release and discharge. Shield understands that Ms Kelliher and Mr Binetter contend in the Ligon Proceedings that those proceedings should be stayed or dismissed because not all parties to the deed of release and discharge have been joined to the proceeding.

22    In order to foreclose any similar argument in this proceeding, Shield submits that Ms Kelliher, as a party to the Deed of Release, would therefore be a necessary party and should now be joined.

23    Further, and in any event, Shield seeks a declaration in this proceeding that to the extent the Deed of Release purports to release claims which Shield had or may have against, inter alia, Ms Kelliher it is void and unenforceable and/or is to be read down or severed. It would appear reasonably arguable that such a declaration would directly affect the rights or liabilities of Ms Kelliher. It is well established that in such circumstances, a person is a necessary party to the proceeding and ought to be joined to the proceeding: John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [131]; Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 at [77] (McHugh J).

24    For these reasons, I am satisfied that it is appropriate to make an order joining Ms Kelliher to the proceedings given the approach taken by Ms Kelliher in the Ligon Proceedings and more significantly because it is reasonably arguable that her interests are likely to be directly affected by the relief sought by Shield in these proceedings.

25    Given this is an ex parte application, counsel for Shield have properly disclosed that Ms Kelliher may be in a position to advance a limitation defence given the Deed of Release was entered into more than six years ago. I accept, however, that the appropriate course in the first instance is for Ms Kelliher to be joined and then any such defence, if available, can then be raised.

D.     OVERSEAS SERVICE

D.1.     Overview

26    Given that both Mr Binetter and Ms Kelliher presently reside overseas, it is necessary to consider whether Shield requires leave for overseas service.

D.2.     Legal principles

27    Division 10.4 of the Rules provides for service of documents outside Australia.

28    Specifically, r 10.42 provides for service outside Australia without leave. Rule 10.42 relevantly provides:

An originating application, together with each document required to accompany the application by rule 8.05, rule 10.43B or any other rule of the Court, may be served outside Australia without leave in the following cases:

…

(j)     if the proceeding arises under a law of the Commonwealth, a State or a Territory, and:

(i)     any act or omission to which the proceeding relates was done or occurred in Australia; or

(ii)     any loss or damage to which the proceeding relates was sustained in Australia; or

(iii)     the law applies expressly or by implication to an act or omission that was done or occurred outside Australia in the circumstances alleged; or

(iv)     the law expressly or by implication confers jurisdiction on the Court over persons outside Australia (in which case any requirements of the law relating to service must be complied with);

        …

(n)     if the proceeding is founded on a cause of action arising in Australia;

29    Rule 10.43 provides for service outside of Australia with leave, if service is not allowed under r 10.42.

30    Rule 10.44 of the Rules provides that:

Any document other than an originating application may be served outside Australia with the leave of the Court, which may be given with any directions that the Court considers appropriate.

31    Rule 10.45 of the Rules provides:

10.45     Application of other rules

The other provisions of this Part apply to service of a document on a person outside Australia in the same way as the provisions apply to service on a person in Australia, to the extent that the provisions are:

(a)     relevant and consistent with this Division; and

(b)    consistent with:

(i)    if a convention applies—the convention; or     

(ii)    if the Hague Convention applies—the Hague Convention; or

(iii)    in any other case—the law of the country in which service is to be effected.

32    Division 10.6 provides specifically for service of documents pursuant to the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” concluded at the Hague on 15 November 1965. Rule 10.62 provides that provisions of Div 10.6 prevail to the extent of any inconsistency between those provisions and any other provisions of the Rules.

D.3.     Consideration

33    I am satisfied that the claims made in the proceeding for breaches of fiduciary and statutory duties under the Corporations Act alleged against Mr Binetter comfortably fall within at least paragraphs (j) and (n) of r 10.42 of the Rules and therefore leave to serve the originating application, and the other documents encompassed by r 10.42, overseas is not required. It is therefore unnecessary to make an order granting leave for the applicant to serve those documents outside of Australia.

34    It is, however, necessary to grant leave pursuant to r 10.44 of the Rules with respect to the service of documents other than the originating application, statement of claim and notice to person served outside Australia (Form 26A). I am satisfied that it is appropriate to grant leave for the service of such documents under r 10.44 because they are orders made in the proceeding or documents that have been filed in the proceeding that will assist in informing each of the respondents of the scope and nature of the claims that Shield seeks to advance against Mr Binetter and the potential impact on Ms Kelliher of the relief sought by Shield.

E.     SUBSTITUTED SERVICE

E.1.     Overview

35    Shield seeks orders for substituted service on Mr Binetter and Ms Kelliher of the originating application, statement of claim, notice to persons served outside Australia (Form 26A), genuine steps statement, affidavits of Mr Walker and exhibits to those affidavits, the interlocutory application and sealed copies of all orders made in the proceeding (together, Documents).

E.2.     Legal principles

36    Division 10.2 of the Rules provides for service other than by personal service. Relevantly, r 10.24 provides that if it is “not practicable” to serve a document on a person in a way required by the Rules then a party may apply to the Court without notice for an order substituting another method of service. While inconvenience is not sufficient for the purposes of r 10.24, it is not necessary for an applicant to prove that it is impossible or futile to effect personal service before an order for substituted service can be made: Commissioner of Taxation v Zeitouni (2013) 306 ALR 603; [2013] FCA 1011 at [66] (Katzmann J).

37    Rule 10.49 makes specific provision for substituted service outside Australia:

10.49    Substituted service

If service on a person outside Australia, in accordance with a convention, the Hague Convention or the law of a foreign country, was not successful, 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.

38    The interaction between the general rule for substituted service in r 10.24 and the specific rule for substituted service outside Australia in r 10.49 was considered by O’Bryan J in Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173. His Honour observed at [32]:

In a number of decisions, this Court has concluded that orders for substituted service outside Australia may be made under r 10.24 where leave to serve out of the jurisdiction has been obtained under r 10.43: see Australian Competition and Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035 at [18] per French J (in respect of the predecessor provisions); Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124 (Humane Society) at [6]-[7] per Allsop J; Commissioner of Taxation v Oswal [2012] FCA 1507; 91 ATR 684 at [32] per Gilmour J; Zeitouni at [60] per Katzmann J; and Australian Information Commission v Facebook Inc [2020] FCA 531; 144 ACSR 88 (AIC v Facebook) per Thawley J at [66]. I consider it appropriate to follow those decisions. In any event, if r 10.24 were to be considered inapplicable in the circumstances of service outside Australia by reason of inconsistency with r 10.49, the Court would have power to make an order for substituted service under r 10.49 in equivalent circumstances by exercising power under r 1.34 to dispense with the requirement that personal service be attempted before substituted service can be effected: see, for example AIC v Facebook at [66]; Connelly (liquidator), in the matter of CIMC Rolling Stock Australia Pty Ltd (in liq) v One Rail Australia (FLA) Pty Ltd (No 3) [2021] FCA 1183 (Connelly) at [72]-[74] per Downes J. In Park (at [18]), Edelman J considered that, while there may be instances where the power in r 1.34 could be exercised to dispense with the requirement under r 10.49 for personal service to be attempted, such instances are likely to be rare.

39    It follows that orders for substituted service overseas can either be made under r 10.24 or, if it is determined that r 10.24 was not available due to inconsistency with r 10.49, under r 10.49 combined with an order under r 1.34, if necessary, dispensing with the requirement for overseas service to be attempted first. For present purposes, given this is an ex parte application determined on the papers, it would be neither desirable nor necessary given the alternative r 10.49/r 1.34 approach to make any definitive finding about the availability of r 10.24.

40    His Honour, O’Bryan J, then observed at [33]:

Under s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), the Court’s procedural powers are to be exercised in the way that best promotes the overarching purpose, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Having regard to that requirement, a range of circumstances are likely to bear upon the question whether substituted service outside Australia should be ordered where service under a relevant convention or foreign law has not first been attempted. Those circumstances will include those identified by Edelman J in Park, specifically principles of international comity as well as the importance of personal service in founding jurisdiction. However, recognition should also be given to the radical changes that have occurred in the last 20 years in every day methods of communication, whereby the vast majority of communication occur electronically by email or similar methods. In my view, in considering an application for substituted service outside of the jurisdiction, a Court should take into account factors including: the subject matter of the proceeding (particularly whether it involves business or commercial matters) and the nature of its connection to Australia; the difficulties and cost associated with attempting to serve the defendant outside Australia in accordance with r 10.43; the urgency of service; the nature of the defendant’s connection to Australia in the context of the proceeding and the defendant’s facility with the English language; and the likelihood that the method of substituted service will bring the documents to the attention of the defendant.

41    With respect, I embrace the less rigid approach propounded by O’Bryan J to making orders for substituted service outside Australia. It reflects and has regard to both the increasing and almost ubiquitous use of electronic means of communication and the practical hurdles and expense of attempting personal service abroad.

42    Finally, I note that following the making of the Federal Court Legislation Amendment Rules 2022 (Cth), which commenced on 13 January 2023, (Amendments) it is no longer necessary to obtain leave to serve an originating process, together with each document required to accompany the application by r 8.05, which includes a statement of claim, r 10.43B or any other rule of the Court, in each of the cases enumerated in r 10.42 of the Rules. Prior to the Amendments, r 10.42 was stated to be subject to r 10.43. Rule 10.43(1) provided that service of an originating application on a person in a foreign country is effective for the purpose of a proceeding only if:

(a)    the Court had granted leave under r 10.43(2) before the application had been served;

(b)    the Court had confirmed service under r 10.43(6); or

(c)    the person served had waived any objection to the service by filing a notice of address for service without also making an application under r 13.01.

43    Further, prior to the Amendments, it had been considered that orders could not be made for substituted service on persons outside the jurisdiction unless leave had first been obtained under r 10.43 of the Rules for overseas service: Park v Tschannen [2016] FCA 137; (2016) 341 ALR 452 at [10]-[11] (Edelman J); Ford at [52] (O’Bryan J). Given r 10.42 is no longer subject to r 10.43 and r 10.43(1) now provides that it only applies “if service is not allowed under rule 10.42”, the rationale for requiring leave under r 10.43 before making an order for substituted service on persons residing outside Australia of documents permitted to be served under r 10.42 is no longer applicable.

E.3.     Consideration

44    Mr Kam gives evidence of a previously unsuccessful attempt to serve Mr Binetter in Australia with a request to provide a report on company activities and property in respect of Shield. Mr Kam also gives evidence of an attempt to serve, by express post to Puerto Rico, a notification that this proceeding had been commenced, which did not receive a response. He gives evidence that, based on a letter dated 11 June 2024 sent by Mr Binetter to Mr Walker (11 June 2024 Letter), Mr Kam understands that Mr Binetter currently resides in the United States at an address in Puerto Rico. Mr Kam, however, understands that Mr Binetter was travelling extensively at least at the time of the 11 June 2024 Letter and that Mr Binetter otherwise did not respond to Mr Walker’s notification of proceedings sent to that address, which arrived in Puerto Rico on 23 January 2025.

45    I am satisfied that this evidence establishes that effecting personal service on Mr Binetter would at least be problematic and would likely involve significant delay and expense. I am also satisfied that both Mr Binetter and Ms Kelliher have a close connection to Australia given the nature of the allegations made in this proceeding, the related 2022 Proceedings and the Ligon Proceedings. Further, this is a proceeding brought by a liquidator on behalf of an Australian company in liquidation and there is a public interest in the proceeding progressing expeditiously: Connelly (liquidator), in the matter of CIMC Rolling Stock Australia Pty Ltd (in liq) v One Rail Australia (FLA) Pty Ltd (No 3) [2021] FCA 1183 at [78] (Downes J).

46    Shield seeks an order for substituted service on Mr Binetter by serving the Documents on Chris Ardagna of Pitcher Partners, Malcolm Stewart and Sadhika Menon of Speed and Stracey Lawyers and to the email addresses of Mr Binetter and Ms Kelliher that were used to effect substituted service on each of them in the Ligon Proceedings. I am satisfied given the evidence provided by Mr Kam of Mr Binetter’s engagement of Pitcher Partners in the 2022 Proceedings and Mr Binetter’s engagement of Speed and Stracey in the Ligon Proceedings, and the legal services provided by each in those proceedings, that the proposed orders for substituted service will be sufficient to bring the Documents to Mr Binetter’s attention.

47    Mr Kam also gives evidence that he has been informed by Mr Walker that Ms Kelliher is married to Mr Binetter, he understands Ms Kelliher also resides in Puerto Rico and that he anticipates similar practical difficulties would arise in attempting personal service on her as have been encountered in previous attempts to contact Mr Binetter. I accept that Mr Kam’s concerns are reasonably founded.

48    Shield seeks an order for substituted service on Ms Kelliher by serving the Documents on Chris Ardagna of Pitcher Partners and to the email addresses of Mr Binetter and Ms Kelliher.

49    I am satisfied given the evidence provided by Mr Kam of Ms Kelliher’s engagement of Pitcher Partners and the legal services provided by them in the Ligon Proceedings, that the proposed orders for substituted service will be sufficient to bring the Documents to Ms Kelliher’s attention.

F.     RECENT CLAIMS MADE IN THE LIGON PROCEEDINGS

50    On 24 April 2025, Shield filed a supplementary written submission from its counsel, and a further affidavit of Mr Kam sworn earlier that day.

51    Mr Kam gives evidence that on 14 April 2025, he received copies of an interlocutory application lodged on 28 March 2025 by the Commissioner of Taxation in the Ligon Proceedings, together with an affidavit in support and written submissions, seeking leave to intervene in the Ligon Proceedings in relation to the proposed tender of a deed to which the Commissioner was a party (Commissioner’s Deed).

52    He also gives evidence that on 16 April 2025, he received copies of written submissions filed by Mr Binetter and Ms Kelliher in the Ligon Proceedings on 11 April 2025, in support of the Ligon Interlocutory Applications in which they advanced contentions as to why service of the Ligon Proceedings should be set aside and the proceedings otherwise dismissed or stayed.

53    Mr Kam gives evidence that he is not presently aware of whether the Commissioner’s Deed will be relevant to the issues in this proceeding.

54    Further, counsel for Shield notes in a short supplementary written submission that the contentions regarding service and the dismissal or stay of the Ligon Proceeding “may portend” that Mr Binetter and Ms Kelliher may bring similar applications in this proceeding if the orders sought by Shield in the interlocutory application were made.

55    For present purposes, I am satisfied that it is neither possible nor helpful to speculate on the merits and fate of any such similar applications. They can and will be addressed if and when they might be advanced.

G.     DISPOSITION

56    Orders providing for the joinder of Ms Kelliher, to the extent necessary service outside the jurisdiction, and substituted service substantially in the form of the orders sought by Shield will be made.

Associate:

Dated:    7 May 2025