Federal Court of Australia

Deputy Commissioner of Taxation v Zou (No 2) [2026] FCA 36

ORDERS

THE COURT NOTES THAT:

A.    The Sheriff’s Office Victoria has advised the applicant that the property referred to in order 1 is scheduled for auction on 12 February 2026.

B.    By interlocutory application dated 22 January 2026 the applicant sought orders dispensing with the requirements under r 69.06(4) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) for personal service on the respondent of the Sheriff’s Sale Advertisement not less than 14 days before the date of the intended sale. In lieu of personal service within that timeframe, the Court made orders for substituted service on the respondent in accordance with order 4 below.

THE COURT ORDERS THAT:

1.    Pursuant to r 10.44 of the Federal Court Rules 2011 (Cth), the applicant has leave to serve on the respondent in the People’s Republic of China in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965:

(a)    the Sheriff's Sale Advertisement in respect of the land described on Certificate of Title Volume 11825 Folio 364 upon which is erected a unit and known as Unit 2608E Level 26, 888 Collins Street, Docklands, Victoria 3008 to be auctioned on 12 February 2026;

(b)    the applicant's interlocutory application dated 22 January 2026;

(c)    the affidavit of Harsimran Kaur Saini sworn on 21 January 2026;

(d)    this order; and

(e)    the written submissions filed by the applicant in support of the interlocutory application

(Documents).

2.    Personal service and service in accordance with the Hague Convention of the Documents be dispensed with.

3.    Pursuant to rr 10.24 and 41.10 of the Rules, by 9 February 2026 the Documents be served on the respondent by way of substituted service as follows:

(a)    by leaving a copy of the Documents at Unit 102, 8 Murrell Street, Ashfield NSW 2131, marked with attention to Shuming Zou; and

(b)    by emailing a copy of the Documents to 22859988@163.com.

4.    Service of the Documents is taken to have been effected on the respondent immediately once all of the steps set out in the preceding order have been undertaken.

5.    The respondent pay the applicant’s costs of the application, to be taxed.

6.    Liberty to apply.

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

REASONS FOR JUDGMENT

NESKOVCIN J:

1    By interlocutory application dated 22 January 2026, the Deputy Commissioner of Taxation (DCT) sought orders granting the DCT leave to serve the respondent in the People’s Republic of China in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965, and for substituted service of the Sheriff’s Sale Advertisement in respect of the Property (as defined below) to be auctioned on 12 February 2026. The DCT also sought orders dispensing with the requirements for personal service on the respondent of the Sheriff’s Sale Advertisement under r 69.06(4) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) (Supreme Court Rules).

2    The application arises out of Deputy Commissioner of Taxation v Zou [2022] FCA 1018 (Hespe J), in which summary judgment was granted against the respondent in the amount of $26,972,229.13. The DCT obtained a warrant for the seizure and sale of the respondent’s property at Unit 2608E, Level 26, 888 Collins Street, Docklands, Victoria (the Property). There is also the related proceeding (VID 180 of 2021) in which Davies J made freezing orders in respect of the Property in April 2021.

3    The application came before me as General Duty Judge on an urgent basis because the Property is scheduled to be auctioned on 12 February 2025. The DCT requested that the application be determined on the papers. The respondent has not participated in the proceeding or the related proceeding, since April 2021. As there is no real issue of fact relevant to the determination of the application and the legal arguments could be dealt with adequately by written submissions, the application has been determined without an oral hearing: s 20A of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

4    In support of the application, the DCT relied principally on an affidavit of Harsimran Saini, sworn 21 January 2026, and affidavits filed earlier in the proceedings, being:

(a)    an affidavit of Jaya Nair dated 21 November 2024;

(b)    an affidavit of Shenali Biyanwila dated 22 November 2024;

(c)    affidavits of Yi Deng sworn 12 April 2021 and 3 May 2022; and

(d)    affidavits of Kim Nguyen affirmed 23 April 2021, 3 May 2021, 20 January 2022, 5 May 2022 and 12 August 2022.

5    For the reasons set out below, I am satisfied that it is appropriate to make orders for leave to serve the respondent outside of Australia and for substituted service of the application and the Sheriff’s Sale Advertisement on the respondent.

background

6    This proceeding was brought by the DCT on 24 January 2022.

7    The respondent departed Australia on 3 November 2019 and has not since returned to Australia. He currently resides in China and his precise whereabouts are unknown.

8    On 16 May 2022, the Court granted leave to serve certain relevant documents on the respondent in the People’s Republic of China in accordance with the Hague Convention and made orders for substituted service, including an order for service on the respondent to the same email address which the DCT relies upon for the purpose of this application.

9    As already mentioned, on 15 August 2022, the Court granted summary judgment against the respondent in the amount of $26,972,229.13. The DCT then took steps to seek to enforce the judgment debt, by obtaining a Warrant for the seizure and sale of the Property and requesting the Sheriff’s Office Victoria to sell the Property.

10    In late 2024, the DCT sought to vary freezing orders which it had first obtained in February 2021, to allow the Sheriff to exercise powers of sale in relation to the Property. On 14 and 5 March 2025 respectively, Justice Horan varied the freezing orders and made orders for substituted service in the same terms as the order for substituted service sought in the application, namely:

(a)    by emailing the respondent at his email address 22859988@163.com; and

(b)    by leaving the documents at a property in Ashfield, New South Sales (Ashfield property), marked to the attention of the respondent.

11    The original Warrant lapsed and, on 27 March 2025, a new Warrant was obtained for the seizure and sale of the Property, pursuant to Order 68 of the then Supreme Court (General Civil Procedure) Rules 2015 (Vic).

12    On 11 December 2025, the DCT’s solicitors received an email from the Sheriff’s Office advising that the Property is listed for auction on 12 February 2026 and that the Sheriff’s Sale Advertisement must be personally served on the respondent at least 14 days prior to the day of sale, or if personal service cannot occur, the DCT must seek an order for substituted service or an order dispensing with service of the Sale Advertisement on the debtor. Furthermore, at least three days prior to the auction, the DCT is required to file an affidavit of service or, if personal service cannot occur, a copy of the order dispensing with service of the Sale Advertisement or the order for substituted service and an affidavit demonstrating compliance with that order.

determination

13    Rule 69.06 of the Supreme Court Rules provides for the ‘Advertisement of sale’ of properties seized by the Sheriff under a Warrant. Rule 69.06(1) effectively provides that, before putting property up for sale under a Warrant, the Sheriff must advertise the sale by giving notice of the time and place of sale and of particulars of the property in the manner which will best give publicity to the sale.

14    Rule 69.06(4) of the Supreme Court Rules requires a creditor, in respect of a sale by the Sheriff under a Warrant, to personally serve a copy of the Advertisement of sale on the debtor not less than 14 days before the date of the intended sale. Rule 69.06(5) provides that the “Court” may dispense with personal service under r 69.06(4). Although the term “Court” is not defined in the Supreme Court Rules, it is self-evidently a reference to the Supreme Court of Victoria: see also s 3 of the Supreme Court Act 1986 (Vic).

15    Rule 69.06(4) of the Supreme Court Rules has two requirements, first, personal service, and second, that service occur 14 days before sale. The applicant sought orders dispensing with the first requirement, with the second requirement (either wholly or to an extent that would allow the 12 February 2026 auction to proceed), or alternatively, dispensing with service of the Sale Advertisement altogether.

16    This proceeding was issued in the Victorian Registry of this Court and the judgment was given in Victoria, where the Property is located.

17    Section 53 of the FCA Act provides that, subject to the Federal Court Rules 2011 (Cth), a person in whose favour a judgment of the Court is given is entitled to the same remedies for enforcement of the judgment in a State or Territory, by execution or otherwise, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given.

18    Rule 41.10(1) of the Rules provides:

A party who wants to enforce a judgment or order of the Court may apply to the Court to make an order, to issue any writ, or to take any other step that can be taken in the Supreme Court of the State or Territory in which the judgment or order has been made as if the judgment or order was a judgment or order of that Supreme Court.

19    In relation to the application of r 41.10(1), see Copeland (liquidator) v Odeesh, FBF Transport Pty Ltd (in liq) (No 2) [2024] FCA 1400 at [10] and [18] (Wigney J) and Siemens WLL v BIC Contracting LLC (2023) 301 FCR 404; [2023] FCA 1664 at [19] (Stewart J).

20    Pursuant to r 10.44 of the Rules, this Court can make orders granting leave for an interlocutory application to be served outside Australia, which may be given with any directions that the Court considers appropriate. 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: Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173 (O’Bryan J) and the authorities cited at [32].

21    On the basis of the materials relied upon by the DCT and the history of this matter, I am satisfied that personal service on the respondent is not practical given the respondent’s absence from Australia and that his whereabouts in China are unknown. Furthermore, I am satisfied that is appropriate to make orders as follows:

(a)    pursuant to r 41.10 of the Rules, dispensing with the requirement for service personal service on the respondent of the Sheriff’s Sale Advertisement not less than 14 days before the date of the intended sale of the Property;

(b)    pursuant to r 10.44 of the Rules, giving leave to serve the respondent outside Australia with the application, the Sheriff’s Sale Advertisement and other documents listed in the application (Relevant Documents); and

(c)    pursuant to r 10.24 of the Rules, for substituted service of the Relevant Documents on the respondent by no later than 9 February 2026 as follows:

(i)    by emailing the Relevant Documents to the email address 22859988@163.com, which is an email address that was provided by the respondent on his last income tax return and to which previous documents have been sent on behalf of the DCT, without any notification that the emails were undelivered; and

(ii)    by leaving the Relevant Documents at the Ashfield property, which is currently owned by the respondent’s wife and was listed as the respondent’s postal address on his last income tax return.

disposition

22    Orders will be made giving effect to these reasons, with liberty to apply.

Associate:

Dated:    2 February 2026