Federal Court of Australia

Yeo (Liquidator), in the matter of ACN 152 259 839 Pty Ltd (in liq) [2025] FCA 1630

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 10.44 of the Federal Court Rules 2011 (Cth) (the Rules), the Plaintiff has leave to serve the following documents directing Mr Ong to produce documents and attend for examination pursuant to s 596B of the Corporations Act 2001 (Cth) (Corporations Act), on Mr Ong outside Australia and in accordance with the laws of Singapore and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters done at the Hague on 15 November 1965:

(a)    the orders of Registrar Curnow in relation to Mr Lay Loon Ong dated 2 December 2025 and the Schedule to those orders; and

(b)    the summons for examination to Mr Lay Loon Ong dated 1 December 2025 and the Schedule to that summons.

2.    Pursuant to r 10.44 of the Rules, the Plaintiff has leave to serve the following documents directing Seraphim Group Pte. Ltd UEN: 201526232E to produce documents pursuant to s 597(9) of the Corporations Act, on Seraphim Group Pte. Ltd UEN: 201526232E outside Australia and in accordance with the laws of Singapore and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters done at the Hague on 15 November 1965:

(a)    the orders of Registrar Curnow in relation to Seraphim Group Pte. Ltd UEN: 201526232E dated 2 December 2025 and the Schedule to those orders; and

(b)    the summons for examination to Mr Lay Loon Ong dated 1 December 2025 and the Schedule to that summons.

3.    Pursuant to r 10.44 of the Rules, the Plaintiff has leave to serve the following documents directing UBS AG Singapore Branch UEN: S98FC5560C to produce documents pursuant to s 597(9) of the Corporations Act, on UBS AG Singapore Branch UEN: S98FC5560C outside Australia and in accordance with the laws of Singapore and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters done at the Hague on 15 November 1965:

(a)    the orders of Registrar Curnow in relation to UBS AG Singapore Branch UEN: S98FC5560C dated 2 December 2025 and the Schedule to those orders; and

(b)    the summons for examination to Mr Lay Loon Ong dated 1 December 2025 and the Schedule to that summons.

4.    The leave to serve outside Australia under r 10.44 granted above in paragraphs 1, 2 and 3 extends to any further order of the Court adjourning the return of the examination summons issued to Mr Ong to a date after 29 January 2026.

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

REASONS FOR JUDGMENT

BUTTON J:

1    The Plaintiff is the liquidator of ACN 152 259 839 Pty Ltd (in liq), formerly known as Maxcon Developments Pty Ltd (the Company).

2    A Registrar of the Court has issued a series of summonses for examination about the examinable affairs of the Company. Those summonses were issued under s 596B of the Corporations Act 2001 (Cth) (Corporations Act). One of the summonses is directed to Mr Lay Loon Ong (Mr Ong). Mr Ong is resident in Singapore. The summons directed to Mr Ong is returnable on 29 January 2026. It also provides for Mr Ong to produce certain books to the Court.

3    The Registrar also made orders pursuant to s 597(9) of the Corporations Act requiring Seraphim Group Pte Ltd UEN: 201526232E (Seraphim) to produce certain books at the examination of Mr Ong, and under s 597(9) requiring UBS AG Singapore Branch UEN: S98FC5560C (UBS Singapore) to produce certain books at the examination of Mr Ong. According to records maintained by the Singaporean Accounting and Corporate Regulatory Authority, both Seraphim and UBS Singapore have registered offices in Singapore, which addresses are known. Likewise, the Singaporean authority’s records provide an address in Singapore for Mr Ong.

4    The liquidator is investigating matters that include payments made by the Company to Seraphim. Mr Ong was a director of Seraphim, and UBS Singapore was Seraphim’s bank.

5    The application before me is an application under r 10.44 of the Federal Court Rules 2011 (Cth) (Rules) for leave to serve the examination summons directed to Mr Ong, and the document production orders directed to Seraphim and UBS Singapore outside Australia. The originating process erroneously referred to leave being sought under r 10.43, but it was confirmed by the liquidator’s submissions that the application is advanced under r 10.44 as the documents sought to be served out of Australia are not an originating application.

6    Although the proceeding falls under the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules), those rules do not contain provisions for service out. Accordingly, and pursuant to r 1.3(2)(a) of the Corporations Rules, the application for leave to serve out of Australia is subject to the relevant provisions of the Rules.

7    In view of the forthcoming return date for the examination summons, the forthcoming Christmas and New Year holiday period, and the unknown duration of the anticipated procedure to be followed in respect of the service in Singapore, there is some urgency in determining this application for leave under r 10.44. Accordingly, these reasons will address the relevant considerations with greater brevity than might otherwise be the case.

8    Singapore acceded to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention), but has objected to Arts 8 and 10. Noting those objections, and assuming leave is granted to serve out of Australia, the liquidator proposes to effect service pursuant to Arts 3–5 of the Hague Convention and in accordance with the procedure for service under the Hague Convention set out in the Rules of Court 2021 (Singapore) (Singapore Rules).

9    The Singapore Rules provide for service under art 5 of the Hague Convention to be effected by a request for service under order 64, r 4A of the Singapore Rules to be made by an applicant to the Minister, accompanied by certain documents. Where the Minister is satisfied that the request complies with the relevant rules and the Hague Convention, the Minister is to forward the request to the Supreme Court of Singapore with an “intimation that it is desirable that effect should be given to the request”: order 64, r 4A(8). That is subject to the Minister’s capacity to refuse to comply with the request if the Minister considers that compliance with the request “may infringe the sovereignty or security of Singapore”: order 64, r 4A(7).

10    Section 596B of the Corporations Act is, like s 596A, intended by Parliament to have extraterritorial effect and apply whether or not the person to be served is an Australian resident or citizen: Waller v Freehills [2009] FCAFC 89; (2009) 177 FCR 507 (Waller) at [53]–[57] (Finn, Dowsett and Siopis JJ). There are numerous cases in which leave to serve examination summonses out of Australia has been granted. Likewise, orders for production of documents under s 597 may be served overseas pursuant to r 10.44: eg Re Lempriere Grain Pty Limited (in liq) [2020] FCA 420 (Gleeson J) (although Gleeson J was addressing r 10.44 prior to the simplifying amendments made in 2023, nothing turns on the distinction); Krejci in his capacity as liquidator of Myoora Land Pty Ltd (in liq) v Myoora Land Pty Ltd [2023] FCA 620 at [34], [36], [38]–[39] (Rares J).

11    The Full Court addressed issues of comity and sovereignty in Waller, in the course of its consideration of the extraterritorial effect of ss 596A and 596B of the Corporations Act. As set out in Waller (particularly at [58]), the Full Court considered that Parliament did intend for those provisions to have extraterritorial effect, but went on to note that the Court has a discretion as to whether to issue a summons under s 596B (which discretion does not apply where the summons is to be issued under s 596A): at [59]–[60]. The Full Court considered that, by the conferral of a discretion in respect of summonses under s 596B, “the legislative scheme seeks to meet in some respect international law concerns regarding comity by vesting in the Court discretion as to whether to issue a summons for the examination of a nonresident in the first place, as opposed to giving the Court a power to determine whether such summons once issued, should be served” (at [61]).

12    Of course, r 10.44 provides for the Court to grant leave to issue a document other than an originating application outside Australia. In Waller, the Full Court explained that the consideration that overseas service may involve an invasion of sovereignty “carried little weight as a discretionary consideration” as Parliament’s enactment of the relevant provisions leads to a conclusion “that Parliament has decided that any international opprobrium attached to the passing of extraterritorial legislation is justified in the public interest for the protection of the interests of Australian creditors and contributories” (at [96]).

13    As Waller makes clear, considerations of sovereignty play little role in determining whether to grant leave for service out, but it may be noted that, in any event, the procedures that the liquidator proposes to adopt to effect service under the Hague Convention and the Singapore Rules make provision for the Singaporean Minister to refuse the application if there are concerns about Singaporean sovereignty being impinged.

14    Here, the documents sought to be served overseas concern the enquiries being made by the liquidator of an Australian company and are directed to those who had dealings with the Company (Mr Ong and Seraphim) or may well hold records that are relevant to those enquiries (UBS Singapore). The Court has, by the issue of the summonses and orders, examined the matters advanced by the liquidator in support of the originating process and determined that the summonses and orders should be issued. It is not necessary, or appropriate, on an application for leave to serve out of Australia, to revisit or reexamine the basis upon which the Court (by the issuing Registrar) was satisfied that the summons to Mr Ong should be issued under s 596B and that orders for document production should be made.

15    Leave should be granted for service out of the documents in question, so that the liquidator of the Company may fulfil the obligations of his office in relation to an Australian company by conducting an examination of Mr Ong, with the benefit of such relevant books as may be produced pursuant to the document production orders. As Banks-Smith J observed in Re Ultima United Limited (in liq) [2025] FCA 1350 (Ultima), examinations under s 596A of the Corporations Act requiring production of books are “important and long-standing provisions of Australian insolvency law” (at [28]). The same may be said of ss 596B and 597(9).

16    For completeness, I note that the affidavit filed in support of the present application shows that attention has been given to the requirement under the Singapore Rules that the person to be served in Singapore has a known address in Singapore. I further note that the liquidator has prepared the documents required — by r 10.64(2) of the Rules — to accompany an application to a Registrar, in the Registrar’s capacity as a forwarding authority, for a request for service in a Convention country and the solicitor on the record has, by the affidavit of Andrew John Chambers sworn 16 December 2025, given the undertakings referred to in r 10.64(3) of the Rules.

17    Leave will be granted under r 10.44, subject to the direction that service be effected in accordance with the Hague Convention and the laws of Singapore. Orders in this form were made by Banks-Smith J in Ultima. The liquidator stated that he seeks orders of the kind made by her Honour in that case, and relied on the reasoning of Banks-Smith J in Ultima. For the avoidance of doubt, however, I should be clear that these reasons address only the application for leave to serve out of Australia. They do not address the precise steps the liquidator is required to take to serve in accordance with the Hague Convention and the laws of Singapore (relevantly, the Singapore Rules). Given that it may transpire that service cannot be effected in sufficient time before the return of the summons issued to Mr Ong, I will further order that the leave to serve out of Australia under r 10.44 extends to any further order of the Court adjourning the return of the examination summons issued to Mr Ong to a date after 29 January 2026.

Associate:

Dated:    17 December 2025