Federal Court of Australia

Hambleton, in the matter of Jamdan Logistics and Transport Pty Ltd (in liquidation) v Holzheimer [2025] FCA 1211

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rule 10.24 of the Federal Court Rules 2011, an order that personal service of the following documents on the Defendant will be dispensed with:

(a)    Originating Process filed 12 August 2025; and

(b)    Affidavit of David James Hambleton dated 12 August 2025 and
Exhibit DJH-1.

(Documents)

2.    Service of the Documents and a sealed copy of this Order dated 26 September 2025 may be effected by the following means:

(a)    by sending a pre-paid ordinary post in an envelope marked for the attention of the Defendant, Mr Troy Holzheimer, at 64 Gloria Street, Cornubia QLD 4130;

(b)    by hand to any person over the age of 16 at 64 Gloria Street, Cornubia QLD 4130, or if this is not possible, by affixing to the front door or leaving in the mailbox of the premises at that address, in all cases in an envelope addressed to the Defendant, Mr Troy Holzheimer; and

(c)    by sending a SMS to 0408 014 012 advising the Defendant, Mr Troy Holzheimer, that the Documents (which are to be listed in full) have been sent to, and left at, 64 Gloria Street, Cornubia QLD 4130.

3.    Service on the Defendant is deemed to have taken effect seven days after service in accordance with order 2(a), (b) and (c) whichever is later.

4.    The matter be listed for a case management hearing at 9.30am on 10 October 2025.

5.    Costs reserved.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

Introduction

1    The First Plaintiff, David James Hambleton, in his capacity as liquidator of Jamdan Logistics and Transport Pty Ltd (in liquidation) ACN 618 392 206 (Liquidator), seeks ex parte orders for substituted service pursuant to r 10.24 of the Federal Court Rules 2011 (Cth) (FCR). The Liquidator has instructed his solicitors to attempt to effect personal service, which, as explained below, has been unsuccessful.

2    As such, the Liquidator now seeks orders for substituted service of the originating application and the accompanying affidavit of the Liquidator, dated 12 August 2025, together with Exhibit DJH-1 (Documents). In essence, to be satisfied that orders for substituted service should be made, an applicant must establish that:

(1)    it is not practicable to serve a document or documents on the particular respondent in a way required by the FCR; and

(2)    in all probability, the mode of substituted service that is proposed by that applicant will bring the relevant documents to the attention of the party to be served, in this case being the Defendant, Mr Troy Holzheimer (Defendant).

3    For the reasons given below, I am satisfied that it is appropriate to make orders for substituted service.

Background

4    The Liquidator, by an originating process filed on 13 August 2025, commenced proceedings against the Defendant. The originating process seeks various relief pursuant to ss 588G, 588E and 588M of the Corporations Act 2001 (Cth) (Act) for orders that:

1    A declaration that the defendant contravened section 588G(2) of the Act;

2    Pursuant to section 588M of the Act, the defendant pays the second plaintiff compensation in the amount of $458,215.66 being the loss suffered by the unsecured creditors of the second plaintiff as a result of the defendant failing to prevent the second plaintiff from trading while insolvent in the period 5 April 2017 to 27 November 2024;

3    In the alternative to 2 above, pursuant to section 588M of the Act, the defendant pays the second plaintiff compensation in the amount of $374,390.75 being the loss suffered by the unsecured creditors of the second plaintiff as a result of the defendant failing to prevent the second plaintiff from trading while insolvent in the period 30 June 2019 to 27 November 2024;

5    The Liquidator has filed a lengthy affidavit in relation to Jamdan Logistics and Transport Pty Ltd (in liquidation) (Company). The Company appears to have operated a freight transport business. The Liquidator deposes that on the basis of the information, particularly the books and records which are currently available to him, it is apparent that the Company did not maintain or retain written financial records that would enable true and fair financial statements to be prepared.

6    On this basis, the Liquidator deposes that the Company’s books and records do not comply with s 286 of the Act. Non-compliance with that section has certain consequences under the Act in relation to a presumption of insolvency. The Liquidator continues and considers other matters relevant to solvency and the position of creditors in relation to the Company. Such matters are clearly relevant to the relief which is sought under the originating process.

7    Solicitors for the Liquidator have provided evidence of service attempts by a process server at an address in Cornubia. The evidence provided by way of a title search and evidence from the Liquidator’s solicitors show at least an association with the Cornubia address by the Defendant. Furthermore, the Liquidator’s solicitors have provided an Australian Electoral Commission search which similarly shows that the Defendant is enrolled to vote at the Cornubia address. That search was undertaken on 8 September 2025.

8    In addition to that search is also a copy of a Personal Name Extract search from the Australian Securities and Investments Commission’s records of the Defendant, which again lists his address as the Cornubia address. That Personal Name Extract search is dated 2 September 2025.

9    Attempts at personal service by a process server engaged by the Liquidator’s solicitors have been undertaken at the Cornubia address on the following occasions:

(a)    15 August 2025 at 11:20am;

(b)    15 August 2025 at 2.30pm;

(c)    16 August 2025 at 6pm;

(d)    17 August 2025 at 12.05pm;

(e)    18 August 2025 at 5pm;

(f)    22 August 2025 at 7am;

(g)    22 August 2025 at 10.40am; and

(h)    31 August 2025 at 2pm.

10    Furthermore, on 17 August 2025 at 12.05pm, when that service attempt was undertaken, the process server deposes to speaking to a female occupant who advised that her name was “Lisa”, that she was the partner of the Defendant, and that the Defendant would be away until Tuesday 19 August 2025. The process server also deposes to leaving a card with contact details with the female occupant and requesting that the Defendant make contact.

11    The Liquidator’s solicitors also provide evidence of a telephone number which has been associated with the Defendant. This evidence is in relation to a mobile telephone number which, as recently as 12 September 2025, still establishes, at least on the basis of this material, some association with this particular mobile telephone number by the Defendant.

Application for Substituted Service

Relevant Principles

12    Rule 10.24 of the FCR provides as follows:

Substituted service

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.

Note:    Without notice is defined in the Dictionary.

13    In Australian Information Commission v Facebook Inc [2021] 44 ACSR 88; [2020] FCA 531, Thawley J set out the relevant principles applicable to r 10.24 at [67] to [68], which I gratefully adopt, as follows. These principles incorporate the paragraph referred to by the Liquidator’s solicitors’ submissions from Colvin J in Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10].

67    Rule 10.24 provides that a person may apply for an order if “it is not practicable to serve a document on a person in a way required by these Rules”. In Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10], Colvin J observed:

“The preponderance of authority is to the effect that the current rule requires the applicant for orders for substituted service to demonstrate that it is not sensible or realistic to effect personal service even though it may be possible or feasible to do so. This will usually be done by taking steps to effect personal service and providing evidence as to any difficulties that have arisen in doing so. It is not necessary to go so far as to demonstrate that there is an inability to effect personal service or that it would be extraordinarily difficult to do so. Further, there must be a proper evidential basis upon which to conclude that in all probability the mode of substituted service that is proposed will bring the relevant documents to the attention of the party to be served.”

68    In Kosmos Capital Pty Ltd v Turiya Ventures LLC [2019] FCA 528 at [50] Jackson J said:

“In the context of r 10.23(a), the word ‘practicable’ has a wide meaning which will depend on the circumstances of the particular proceeding: Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286 at [11]-[15]. Rule 10.23 does not require the applicant to prove the impossibility of service of documents upon a party in accordance with the rules, or that further attempts to effect service in accordance with the rules would be futile or not sensible or feasible: Speedo Holdings BV v Evans [2011] FCA 1089 at [12]. The question is not whether reasonable effort has been shown by the applicant over a particular period, but whether at the date on which the application regarding service is made, the applicant, using reasonable effort, is unable to serve the respondent personally: Foxe v Brown (1984) 58 ALR 542 at 547 as applied in O'Neil v Acott (1988) 59 NTR 1 at 2. Evidence of attempts to serve, attempts to speak by telephone and lack of knowledge of whereabouts will be relevant to the question of practicability: see eg Ross v Cotter [2015] FCA 310 at [2].”

14    The Liquidator is seeking to effect service of the Documents by way of ordinary prepaid post to the Cornubia address, by delivering by hand the Documents to the Cornubia address, and also by sending a text message to the mobile telephone number, which has been identified to notify the Defendant of the delivery of the Documents.

This Application for Substituted Service

15    In relation to the evidence which has been relied on for the purposes of this application, the Liquidator’s solicitors have filed evidence which is described above in relation to the attempts at personal service which have been undertaken. The first question in an application such as this is whether or not it is practicable to serve a document or documents on the Defendant in a way required by the FCR.

16    The originating process must be personally served on the Defendant (see r 10.01 of the FCR and r 2.7 of the Federal Court (Corporations) Rules 2000 (Cth)). To satisfy the requirement for an order for substituted service, the Liquidator must satisfy the Court that it is not practicable to serve the Defendant as required by the FCR. In accordance with the principles outlined above, that does not require the Liquidator to demonstrate that there is an inability to effect personal service, or that it would be extraordinarily difficult to do so.

17    The Rules require an applicant for orders for substituted service to demonstrate that it is not practicable in the sense of not being sensible or realistic to effect personal service, even though it may be feasible or possible to do so.

18    It also does not require an applicant to prove the impossibility of service of documents upon a party in accordance with the FCR. The question is whether, at the date of this application regarding service, the Liquidator, using reasonable efforts, is unable to personally serve the Defendant.

19    The Liquidator relies on recent evidence of the Defendant’s address in Australia, being the Cornubia address.

20    The Liquidator has provided evidence by way of the process server of eight attempts of personal service at the Cornubia address. Those attempts at service have been at a variety of times during the day and on different days during the week, which shows reasonable attempts on the part of the Liquidator to effect personal service. Reasonable steps have been undertaken by the Liquidator to effect personal service. Further, the process server left a business card and asked to be contacted, but no contact has subsequently been made. Having regard to the evidence that is before the Court, I am satisfied that it is not practicable to serve the Defendant personally with the Documents as required by the FCR.

21    As such, it is necessary to consider the second question. That is, whether in all probability, the mode of substituted service that is proposed by the Liquidator will bring the Documents to the attention of the Defendant. This requires that there must be a proper evidential basis upon which to conclude that, in all probability, the mode of substituted service that is proposed will bring the relevant documents to the attention of the party to be served, that being the Defendant.

22    During the course of the hearing, given the unsuccessful attempts at personal service at the Cornubia address, the Liquidator’s solicitors were asked whether a current email address for the Defendant was available. The Liquidator’s solicitors quite properly took the Court to the relevant material in the Liquidator’s affidavit but submitted that there was an absence of any response to those email communications, and that those had occurred earlier this year in March 2025.

23    That is, given the passage of time and an absence of response, little confidence could be had that such electronic communications would come to the attention of the Defendant.

24    The proposed method of substituted service is still one to be effected at the Cornubia address. Although the failed or unsuccessful attempts at personal service were also at the Cornubia address, given the current evidence of the Defendant’s close association with the Cornubia address, it may be that it is the attempts at personal service which mean that the Documents are not being effectively served, and thereby coming to the Defendant’s attention.

25    The Applicant proposes to effect service, that is to bring the Documents to the Defendants attention, by three different means. First, whereby the Documents will be sent by ordinary prepaid post and hence should arrive in the usual course of the postal service. Secondly, that the Documents will be left with a person at the address or, if that is not possible, by affixing them to the front door of the address or by leaving them in the mailbox. Thirdly, by sending a text message to the mobile telephone number which has been identified as being associated with the Defendant to advise that the Documents have been sent and, in addition, left at the Cornubia address.

26    In all of those circumstances, given the multiple ways of sending and leaving the Documents at the address at which the Defendant appears to reside, together with the notification to his mobile telephone, I am satisfied that these proposed methods of substituted service are likely to bring the Documents to the attention of the Defendant.

Associate:    

Dated:    26 September 2025