Federal Court of Australia

McCabe (liquidator), in the matter of Sargon Capital Pty Limited v D’Souza [2025] FCA 620

ORDERS

THE COURT ORDERS THAT:

Leave to serve Supplementary Documents outside Australia on second, fourth and fifth defendants

1.    The plaintiffs have leave pursuant to r 10.44 of the Federal Court Rules 2011 (Cth) to serve the following documents on the second, fourth and fifth defendants in the United States of America:

(a)    a sealed copy of the orders of Markovic J made on 4 December 2024;

(b)    a sealed copy of the orders of Markovic J made on 12 February 2025;

(c)    a sealed copy of the orders of Markovic J made on 12 March 2025;

(d)    a sealed copy of the orders of Markovic J made on 2 April 2025;

(e)    a sealed copy of the orders of Markovic J made on 1 May 2025;

(f)    the plaintiffs’ interlocutory process filed 30 April 2025 (Interlocutory Process);

(g)    the affidavit of Blake Joel O’Neill affirmed 28 April 2025;

(h)    the affidavit of Kobe Monroe sworn 2 April 2025;

(i)    the affidavit of Ronald Ryan sworn 13 January 2025;

(j)    the affidavit of Frederick Pringle sworn 3 April 2025;

(k)    Exhibit A tendered at the hearing of the Interlocutory Process before Markovic J on 15 May 2025; and

(l)    a sealed copy of these Orders,

(collectively, Supplementary Documents).

Substituted service on Anthony Owen

2.    Pursuant to r 10.49(a) of the Rules, in lieu of personal service and service under the Hague Conference on Private International Law Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention), the second defendant, Anthony Owen, be served with the following documents:

(a)    the sealed originating process dated 26 November 2024;

(b)    the sealed affidavit of Andrew McCabe dated 25 November 2024;

(c)    the sealed affidavit of Alexander Dennis Blackie dated 27 November 2024;

(d)    the Supplementary Documents,

(collectively, the Documents); and

(e)    Form 26A – Notice to person served outside Australia dated 15 May 2025 addressed to Mr Owen (Owen Form 26A);

by:

(f)    leaving a copy of the Documents and Owen Form 26A addressed to Mr Owen at 929 Highview Avenue, Manhattan Beach, CA 90266 United States of America; and

(g)    sending a copy of the Documents and Owen Form 26A by email to andrewcorkhill@quinnemanuel.com and jackoakley@quinnemanuel.com.

3.    Pursuant to r 10.49(c) of the Rules, the Documents and Owen Form 26A shall be taken to have been served on Mr Owen on the first business day after service in accordance with Order 2 (f) or (g) above, whichever is later.

Substituted service on Edward Paul Wasserman

4.    Pursuant to r 10.49(a) of the Rules, in lieu of personal service and service under the Hague Convention, Edward Paul Wasserman be served with the Documents and Form 26A – Notice to person served outside Australia dated 15 May 2025 addressed to Mr Wasserman (Wasserman Form 26A), by leaving a copy of the Documents and Wasserman Form 26A addressed to Mr Wasserman at 210 West 11th Street, New York, NY 10014 United States of America.

5.    Pursuant to r 10.49(c) of the Rules, the Documents and Wasserman Form 26A shall be taken to have been served on Mr Wasserman on the first business day after service in accordance with Order 4 above.

Substituted service on Matthew Simon Nash Kibble

6.    Pursuant to r 10.49(a) of the Rules, in lieu of personal service and service under the Hague Convention, Matthew Simon Nash Kibble be served with the Documents and Form 26A – Notice to person served outside Australia dated 15 May 2025 addressed to Mr Kibble (Kibble Form 26A), by:

(a)    leaving a copy of the Documents and Kibble Form 26A addressed to Mr Kibble at 135 Worth Court N, West Palm Beach, FL 33405 United States of America; and

(b)    sending a copy of the Documents and Kibble Form 26A by email to andrewcorkhill@quinnemanuel.com and jackoakley@quinnemanuel.com.

7.    Pursuant to r 10.49(c) of the Rules, the Documents and Kibble Form 26A shall be taken to have been served on Mr Kibble on the first business day after service in accordance with Order 6 (a) and (b) above, whichever is later.

Amendment to the orders made on 1 May 2025 and orders for leave to serve Supplementary Documents outside Australia on the first and third defendants

8.    Order 3 made on 1 May 2025 be vacated and in lieu of that order the following order be made:

“The plaintiffs have leave pursuant to rule 10.44 of the Federal Court Rules 2011 (Cth) to serve a sealed copy of these orders on the first and third defendants in the United Kingdom of Great Britain and Northern Ireland.”

9.    The plaintiffs be granted leave, nunc pro tunc, pursuant to r 10.44 of the Rules to serve the documents referred to in Order 1(a) to (d) above on the first and third defendants in the United Kingdom of Great Britain and Northern Ireland.

10.    The plaintiffs be granted leave, pursuant to r 10.44 of the Rules to serve the documents referred to in Order 1 (f) to (l) above on the first and third defendants in the United Kingdom of Great Britain and Northern Ireland.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    On 15 May 2025 I heard an interlocutory application filed on 30 April 2025 by the plaintiffs, Andrew McCabe and Joseph Hayes in their capacity as joint and several liquidators of Sargon Capital Pty Limited (receivers and managers appointed) (in liquidation) (liquidators), seeking orders for substituted service pursuant to r 10.49 of the Federal Court Rules 2011 (Cth) of the originating process filed on 26 November 2024 and supporting documents on the second defendant, Anthony Owen, the fourth defendant, Matthew Simon Nash Kibble, and the fifth defendant, Edward Paul Wasserman.

2    The liquidators relied on an affidavit affirmed by their solicitor, Blake Joel O’Neil, on 28 April 2025, and three affidavits of attempted service from licenced process servers in the United States of America (USA) in respect of the attempts of service on each of Messrs Owen, Kibble and Wasserman.

3    Following the hearing, I made orders substantially in accordance with the orders sought by the liquidators in their interlocutory application. These are my reasons for making those orders.

Background

4    The liquidators were appointed joint and several liquidators of Sargon Capital by a resolution of the creditors of the company on 8 April 2020.

5    This proceeding was commenced on 26 November 2024 by the filing of the originating process and an affidavit in support which annexes a draft statement of claim that the liquidators anticipate filing in the proceeding.

6    The proceeding concerns claims by the liquidators against five current or former directors of Sargon Capital. The liquidators seek declarations that each defendant breached his duty to prevent Sargon Capital from trading while insolvent in contravention of s 588G of the Corporations Act 2001 (Cth) and an order under s 588M for recovery of compensation for loss resulting from insolvent trading.

7    The defendants are:

(1)    Aron Ping D’Souza, the first defendant, who was a director of Sargon Capital from 16 October 2015 to 20 July 2019. Mr D’Souza resides in the United Kingdom (UK);

(2)    Mr Owen, the second defendant, who was a director of Sargon Capital from 1 May 2018 to 21 June 2019. Mr Owen resides in the USA;

(3)    Robert Rankin, the third defendant, who was a director of Sargon Capital from 14 May 2018 to 23 January 2020. Mr Rankin resides in the UK;

(4)    Mr Kibble, the fourth defendant, who was appointed a director of Sargon Capital on 28 September 2018 and continues in that office. Mr Kibble resides in the USA; and

(5)    Mr Wasserman, the fifth defendant, who was also appointed a director of Sargon Capital on 28 September 2018 and also continues in that office. Mr Wasserman resides in the USA.

8    As will become clear, the attempts of service on each of Messrs Owen, Kibble and Wasserman have been unsuccessful. On 1 May 2025, the time for service of the originating process and supplementary documents in this proceeding on Messrs Owen, Kibble and Wasserman was extended to 26 June 2025 pursuant to r 1.39 of the Rules. This was the fifth occasion that the time for service of the originating process and supplementary documents had been extended.

9    On 30 April 2025 the liquidators filed the interlocutory application seeking orders for substituted service on Messrs Owen, Kibble and Wasserman. At the hearing of the interlocutory application the liquidators also sought leave to serve certain supplementary documents on Messrs Owen, Kibble and Wasserman in the USA and leave nunc pro tunc to serve sealed copies of orders made in the proceeding on Messrs D’Souza and Rankin in the UK.

Examination proceeding

10    On 9 December 2022 the liquidators commenced proceeding NSD1088/2022 in this Court seeking the issue of examination summonses pursuant to s 596A and s 596B of the Corporations Act to, among others, Messrs Owen, Kibble and Wasserman (examination proceeding). It is not necessary to set out the detail of that proceeding save to note that:

(1)    Quinn Emanuel Urquhart & Sullivan were instructed to and did act on behalf of Messrs Owen and Kibble in relation to the examination proceeding;

(2)    Mr Owen swore and served two unfiled affidavits in the examination proceeding each recording his address as 929 Highview Avenue, Manhattan Beach CA 90266 USA (Manhattan Beach Address); and

(3)    Mr Kibble affirmed and served an unfiled affidavit in the examination proceeding which records his address as 135 Worth Court North, West Palm Beach, Florida, 33404 USA (West Palm Beach Address).

Correspondence between ERA Legal and Quinn Emanuel

11    On 30 May 2024 solicitors for the liquidators, ERA Legal, sent without prejudice correspondence to Quinn Emanuel attaching draft statements of claim naming Messrs Owen and Kibble as defendants in which the liquidators claimed damages for insolvent trading (each in materially identical terms). These claims have now been made in this proceeding.

12    On 19 June 2024 Quinn Emanuel sent a letter to ERA Legal which relevantly provided:

1.    We refer to your three letters of 30 May 2024 (Letters)—each in materially identical terms—foreshadowing the commencement of proceedings alleging insolvent trading against (inter alios) each of Matthew Simon Nash Kibble (Mr Kibble), Anthony Owen (Mr Owen) and Robert John Rankin (Mr Rankin).

2.    As you are aware, we have acted for Mr Kibble and Mr Owen in connection with the Proceeding and remain instructed by each of them. We have also been instructed to act for Mr Rankin (in addition to his current, primary solicitors—Mathas Law). Our clients jointly respond to the Letters (sent to each of them individually) as follows.

…

7.    As should be clear from the above matters, our clients believe there is no merit to the claims threatened in the SoC, and will vigorously defend any insolvent trading allegations made against them. That said, each of our clients is open to discussing alternatives to proceedings being commenced against them, including providing (further) assistance to the liquidators in respect of claims they may wish to bring against other parties (such as Taiping, Andy Wang and/or the Company’s auditors).

8.    If, however, proceedings are commenced against our clients, we put you on notice that:

(a)    our clients will be seeking substantial security for their costs before taking any step in those proceedings; and

(b)    our clients will be calling upon the Company (through your clients) to indemnify each of them against all liability in connection with those proceedings and for their defence costs to be advanced by the Company pursuant to the indemnities granted by the Company in Clause 3 of each of their Director’s Deeds.

…

13    The “Proceeding” to which Quinn Emanuel refer is the examination proceeding. In that letter Quinn Emanuel also set out the basis upon which Messrs Owen and Kibble considered that the draft statements of claim disclosed “no reasonable cause of action against [them] and is liable to be struck out and/or summarily dismissed” and where they considered the allegations in the draft statements of claim raised allegations that were “without foundation or (at the very least) overstated and misconceived”.

14    On 19 November 2024 the liquidators requested that Quinn Emanuel confirm whether they were instructed to accept service of the originating process on behalf of Messrs Owen and Kibble. The liquidators did not receive any response from Quinn Emanuel to this request.

Attempts of service on Mr Owen

15    The liquidators rely on the affidavit of Kobe Monroe, licenced process server, in respect of the attempts at service of the originating process and supplementary documents on Mr Owen. Mr Monroe deposes that:

(1)    on 3 December 2024 he attended the Manhattan Beach Address and was informed by the house cleaner that Mr Owen was not home but that he was due back the following day between 12.00 pm and 2.00 pm;

(2)    on 4 December 2024 at 2.00 pm he attended the Manhattan Beach Address. On this occasion no one answered the door and he did not observe any activity on the property;

(3)    on 9 December 2024 he attempted to personally serve Mr Owen with the originating process and supplementary documents at the Manhattan Beach Address. At the time of attempting service Mr Monroe was informed that Mr Owen was “out of town in Las Vegas for a few days”;

(4)    on 24 December 2024 he attended the Manhattan Beach Address and after receiving no response to his knocks on the front door, observed a package on the doorstep addressed to “Monique and Tony Owen”; and

(5)    on 2 January 2025 he attended the Manhattan Beach Address and was informed by a person attending to the pool that Mr Owen was “on vacation and [was] not expected home until next week”.

16    Based on the matters in the preceding paragraph, that Mr Owen recorded his address in his unfiled affidavits in the examination proceeding as the Manhattan Beach Address (see [10(2)] above) and that the company records in respect of Sargon Capital record the Manhattan Beach Address as Mr Owen’s residential address, the liquidators are of the view that this is the address at which Mr Owen resides and that they expect that if the documents are left at the Manhattan Beach Address they will likely come to his attention.

Attempts of service on Mr Kibble

17    The liquidators rely on the affidavit of Ronald Ryan, licenced process server, in respect of the attempts at service of the originating process and supplementary documents on Mr Kibble. Mr Ryan deposes that:

(1)    on 2 December 2024 he attended the West Palm Beach Address and was informed by a person who appeared to him to be a live-in nanny that Mr Kibble was not home and that he was not expected to be home for three or four days;

(2)    on 6 December 2024 he attended the West Palm Beach Address on which occasion it appeared to him that there was no one at the property;

(3)    on 7 December 2024 he attended the West Palm Beach Address and, after receiving no response to his attempts of service at the front door of the property, observed a package by the front door addressed to “Matthew Kibble”;

(4)    on 12 December 2024 he attended the West Palm Beach Address on which occasion there was no answer; and

(5)    on 13 December 2024 he attended the West Palm Beach Address and observed the same person that he spoke to on 2 December 2024 through the blinds inside the house. Mr Ryan knocked on the door many times but there was no answer.

18    Based on the matters in the preceding paragraph, that Mr Kibble recorded his address in his unfiled affidavit in the examination proceeding as the West Palm Beach Address (see [10(3)] above) and that Mr Kibble deposes to his joint interest (with his wife) in, and his principal place of residence as being, the West Palm Beach Address in that affidavit, the liquidators are of the view that this is the address at which Mr Kibble resides and that they expect that if the documents are left at the West Palm Beach Address they will likely come to his attention.

Attempts of service on Mr Wasserman

19    The liquidators identified that company records in respect of Sargon Capital record Mr Wasserman’s residential address as 210 West 11th Street, New York City, NY 10014 USA (New York City Address). The liquidators therefore instructed Frederick Pringle, licenced process server, to personally serve the originating process and supplementary documents on Mr Wasserman at that address. Mr Pringle has sworn an affidavit in respect of those attempts of service on Mr Wasserman in which he deposes that:

(1)    on 3 December 2024 at the time of attempting to personally serve the originating process and supplementary documents on Mr Wasserman at the New York City Address there was no answer to the doorbell and he was unable to discern if anyone was at the property;

(2)    on 4 December 2024 he attended the New York City Address and spoke to a female who would not identify herself but who informed him that “Mr Wasserman is away”. The female did not provide any further information;

(3)    on 2 January 2025 he attempted to personally serve the originating process and supplementary documents on Mr Wasserman at the New York City Address but there was no answer when he rang the doorbell; and

(4)    on 10 January 2025 he attended the New York City Address and spoke to the same female that he spoke to on 4 December 2024 who again refused to identify herself but advised that “Edward Wasserman is not home”.

20    Based on the matters in the preceding paragraph and that the company records for Sargon Capital record the New York City Address as Mr Wasserman’s residential address, the liquidators are of the view that this is the address at which Mr Wasserman resides and they expect that if the documents are left at the New York City Address they will likely come to his attention.

Legal principles

21    Division 10.4 of the Rules deals with service outside of Australia.

22    Rule 10.42 of the Rules provides for the circumstances in which documents may be served outside Australia without leave of the Court. Relevantly, r 10.42 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);

…

23    Whether an action was done or occurred in or outside of Australia for the purpose of the Corporations Act is assessed by reference to the territorial application under s 5 of that Act, which relevantly provides:

…

Operation outside this jurisdiction

(4)    Subject to subsection (8), each provision of this Act also applies, according to its tenor, in relation to acts and omissions outside this jurisdiction

Residence, place of formation etc.

(7)    Each provision of this Act applies according to its tenor to:

(a)    natural persons whether:

(i)    resident in this jurisdiction or not; and

(ii)    resident in Australia or not; and

(iii)    Australian citizens or not; and

(b)    all bodies corporate and unincorporated bodies whether:

(i)    formed or carrying on business in this jurisdiction or not; and

(ii)    formed or carrying on business in Australia or not.

24    Any person served outside Australia with an originating application must also be served with a notice in accordance with Form 26A which informs the recipient of the scope of the Court’s jurisdiction, the grounds alleged by the applicant to found jurisdiction, and the recipient’s right to challenge service or the jurisdiction of the Court or to file a conditional appearance: r 10.43B of the Rules.

25    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.

26    Where a party is unsuccessful in attempting service outside Australia, they may apply under r 10.49 for an order for substituted service. Rule 10.49 provides:

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.

27    The “Hague Convention” referred to in r 10.49 is defined as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters: r 1.51 and Sch 1 of the Rules. Relevantly, the USA ratified the Hague Convention on 24 August 1967 and it entered into force in the USA on 10 February 1969.

28    Division 10.6 of the Rules provides for service under the Hague Convention. Rule 10.62 provides that the provisions of that division will prevail to the extent of any inconsistency between them and any other provisions of the Rules.

29    Article 10 of the Hague Convention states:

Provided the State of destination does not object, the present Convention shall not interfere with –

a)    the freedom to send judicial documents, by postal channels, directly to persons abroad,

b)    the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

c)    the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

Consideration

Service outside Australia

30    Given that Messrs Owen, Kibble and Wasserman each reside overseas, it was necessary to consider whether the liquidators require leave for overseas service.

31    The liquidators submitted that the claims in the proceeding, being allegations that each of the defendants breached their duty to prevent Sargon Capital from trading while insolvent in contravention of s 588G of the Corporations Act, arise under a law of the Commonwealth in circumstances where:

(1)    the relevant acts or omissions to which the proceeding relates were done or occurred in Australia;

(2)    loss and damage which has arisen by reason of the defendants’ contravention of s 588G of the Corporations Act was sustained in Australia;

(3)    pursuant to s 5(4) of the Corporations Act, the provisions of the Corporations Act apply in relation to acts or omissions outside of Australia; and

(4)    pursuant to s 5(7) of the Corporations Act, the provisions of the Corporations Act, apply to persons outside of Australia.

32    In respect of subparagraphs (3) and (4) in the preceding paragraph the liquidators relied on Waller v Freehills [2009] FCAFC 89 where a Full Court of this Court (Finn, Dowsett and Siopis JJ) stated at [53] that:

In our view, s 5 of the Corporations Act comprises a clear expression of Parliament’s intention that the provisions of the Corporations Act are, according to their tenor, to operate extraterritorially. This expression of Parliamentary intention operates to displace the presumption that the Corporations Act is to operate only territorially.

33    A claim under s 588G of the Corporations Act is a claim that arises under a law of the Commonwealth. The particulars of the claim in the proceeding before me demonstrate that the relevant acts or omissions, being the defendants’ alleged failure to prevent Sargon Capital, a company incorporated in Australia, from incurring debts whilst insolvent, were done or occurred in Australia and the loss that has arisen as a result was sustained by Sargon Capital in Australia. In addition, having regard to the extraterritorial application of s 5 of the Corporations Act, I was satisfied that s 588G of the Corporations Act applies to acts or omissions of Messrs Owen, Kibble and Wasserman despite those persons being outside Australia.

34    Accordingly, I was satisfied that the claims in the proceeding fall within r 10.42(j) of the Rules. It followed that the liquidators did not require leave to serve the originating process and the other documents contemplated under r 10.42(j) of the Rules on Messrs Owen, Kibble and Wasserman outside Australia.

35    However, as was accepted by the liquidators, it was necessary to consider whether leave ought to be granted pursuant to r 10.44 of the Rules with respect to the service outside of Australia of documents not contemplated by r 10.42 of the Rules (including sealed orders made in the proceeding, the interlocutory application and evidence relied upon by the liquidators in support of the interlocutory application).

36    I was satisfied that it was appropriate that leave be granted to the liquidators to serve those further documents on each of Messrs Owen, Kibble and Wasserman outside Australia. The liquidators submitted, and I accepted, that the orders made in the proceeding and the supplementary documents that have been filed in the proceeding will assist in informing each of the defendants of the scope and nature of the claims that the plaintiffs seek to advance against each of the defendants in the proceeding: see Shield Holdings Australia Pty Ltd (in liq) v Binetter [2025] FCA 451 at [34].

Substituted service

37    The liquidators sought orders for substituted service pursuant to r 10.49 of the Rules on Messrs Owen, Kibble and Wasserman of the originating process, affidavits of Messrs McCabe and Blackie in support of the originating process, notice to persons outside Australia (Form 26A), the interlocutory application, the affidavits of Messrs O’Neil, Monroe, Ryan and Pringle in support of the interlocutory application and sealed copies of all orders made in the proceeding (together, the Documents).

38    Rule 10.49 requires first that the party seeking relief take steps to attempt service of the documents in accordance with the relevant convention or foreign law. In Park (Trustee) v Tschannen (Bankrupt) [2016] FCA 137 Edelman J said at [15]:

The difficulty with the orders sought for substituted service in this case is that r 10.49 requires that some attempt will have been made for service in accordance with the relevant Convention. It provides “if service was not successful on a person in a foreign country”. The concept of a lack of success involves, at least, some attempt. This contrasts with the general provision in r 10.24 for substituted service which permits substituted service if “it is not practicable to serve a document on a person in a way required by these Rules” (emphasis added).

39    It was plain from the liquidators’ evidence summarised at [15]-[20] above that a number of unsuccessful attempts had been made to personally serve the applicable Documents on each of Messrs Owen, Kibble and Wasserman. The liquidators submitted, and I accepted, that those attempts at service had been undertaken in accordance with the Hague Convention. In particular, in his affidavit affirmed on 28 April 2025, Mr O’Neil annexed a copy of the relevant authority under the Hague Convention in respect of the USA, which confirms that personal service is the method used in executing all requests for formal service.

40    Mr O’Neil also deposed that he considered that service by post may also have been permissible in order to effect service in the USA under the Hague Convention but, having regard to the nature of the claims made against Messrs Owen, Kibble and Wasserman in the proceeding, being insolvent trading claims ranging from approximately $49 million to $82 million, the liquidators adopted what they considered to be the more prudent course of attempting personal service by licenced process servers.

41    I was satisfied that the evidence established that the liquidators had taken steps to attempt service of the Documents in accordance with the Hague Convention on Messrs Owen, Kibble and Wasserman and that effecting personal service on each of them would likely result in significant delay and expense. Relevantly, this is a proceeding brought by liquidators on behalf of an Australian company in liquidation and there is a public interest in the liquidation (including this litigation) being finalised as soon as possible: 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].

42    I was satisfied, on balance, that the evidence in support of the interlocutory application established that:

(1)    Mr Owen resides at the Manhattan Beach Address;

(2)    Mr Kibble resides at the West Palm Beach Address; and

(3)    Mr Wasserman resides at the New York City Address,

such that there is a reasonable probability that, by leaving the Documents at those addresses, they will (as applicable) be brought to the attention of Messrs Owen, Kibble or Wasserman: see British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065 [30], [34]; Rowe (by next friend Guscott) v Barton as Trustee for Barton Family Trust trading as Sealwerx WA [2021] FCA 196 [9], [11].

43    Mr O’Neil also gave evidence that by serving the Documents on Andrew Corkhill and Jack Oakley of Quinn Emanuel, who acted for Messrs Owen and Kibble in the examination proceeding and who corresponded with ERA Legal on behalf of Messrs Owen and Kibble in respect of the subject matter of this proceeding on at least one occasion (see [XX] above), the Documents were likely to be brought to the attention of Messrs Owen and Kibble.

44    The liquidators therefore sought an order for substituted service on Messrs Owen and Kibble by sending the Documents by email to Messrs Corkhill and Oakley. The liquidators submitted that, notwithstanding the lack of response from Quinn Emanuel and the passage of time since the last correspondence, if the documents were served on Quinn Emanuel they would likely come to the attention of Messrs Owen and Kibble.

45    I was satisfied, given the evidence in relation to scope and nature of Messrs Owen’s and Kibble’s prior engagement of Quinn Emanuel, that the proposed order for substituted service on those defendants by serving the Documents on Messrs Corkhill and Oakley would also be likely to bring the Documents to the attention of Messrs Owen and Kibble.

Conclusion

46    For those reasons I made the orders sought by the liquidators.

Associate:

Dated:    13 June 2025

SCHEDULE OF PARTIES