FEDERAL COURT OF AUSTRALIA

Hodgson (Liquidator) v Commissioner of Taxation, in the matter of ACN 009 068 447 Pty Ltd (In Liquidation) [2026] FCA 495

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) (Rules), r 17.01(2) of the Rules be dispensed with for the purposes of this application.

2.    The time in which the fifth defendant has to file her defence is extended to 14 days after the plaintiffs have complied with order 3 below.

3.    Pursuant to r 10.24 of the Rules, the plaintiffs are granted leave to serve sealed copies of:

(a)    the originating process filed on 21 October 2025;

(b)    the statement of claim filed on 13 November 2025; and

(c)    the orders of Jackson J made in this proceeding on 27 November 2025,

(together, the Documents) on the fifth defendant by taking each of the following actions:

(i)    sending by ordinary post copies of the Documents to the following addresses:

A.    the address that is referred to in para 6 of the affidavit of Mallika De Toni sworn on 20 March 2026;

B.    'Remade in Australia Limited', Level 4, 11 Coventry Street, Southbank VIC 3006;

(ii)    emailing portable document format (pdf) copies of the Documents to the email address referred to in para 9 of the affidavit of Mallika De Toni sworn on 20 March 2026;

(iii)    sending a message on LinkedIn to the fifth defendant in the following terms:

IMPORTANT: YOUR URGENT ATTENTION IS REQUIRED. DO NOT IGNORE THIS MESSAGE.

You have been joined as a defendant to Federal Court of Australia proceedings WAD 378 of 2025, a proceeding commenced by the liquidators of ACN 009 068 473 Pty Ltd (In Liquidation). We have been trying to contact you in respect of this proceeding to serve you with the following documents:

(a)    originating process filed on 21 October 2025;

(b)    statement of claim filed on 14 November 2025; and

(c)    orders of Jackson J on 27 November 2025.

It has been ordered by the Federal Court of Australia that service of the above documents in the proceeding be effected on you by this notice.

If you wish to defend this action, you must file a defence with the Federal Court of Australia within 14 days. If you fail to file a notice of address for service, or fail to file a defence in the required time, then judgment may be entered against you or other orders adverse to your interests may be made.

We urge you to seek independent legal advice in respect of this message.

It is very important that you do not ignore this message.

(iv)    sending an SMS message to the telephone number referred to at para 8 of the affidavit of Richard Mumford affirmed on 16 March 2026 in the following terms:

IMPORTANT: YOUR URGENT ATTENTION IS REQUIRED. DO NOT IGNORE THIS MESSAGE.

You have been joined as a defendant to Federal Court of Australia proceedings WAD 378 of 2025, a proceeding commenced by the liquidators of ACN 009 068 473 Pty Ltd (In Liquidation). We have been trying to contact you in respect of this proceeding to serve you with the following documents:

(a)    originating process filed on 21 October 2025;

(b)    statement of claim filed on 14 November 2025; and

(c)    orders of Jackson J on 27 November 2025.

It has been ordered by the Federal Court of Australia that service of the above documents in the proceeding be effected on you by this notice.

If you wish to defend this action, you must file a defence with the Federal Court of Australia within 14 days. If you fail to file a notice of address for service, or fail to file a defence in the required time, then judgment may be entered against you or other orders adverse to your interests may be made.

We urge you to seek independent legal advice in respect of this message.

It is very important that you do not ignore this message.

(v)    ensuring that the messages referred to in (iii) and (iv) above include information that copies of the Documents have been emailed to the email address referred to at para 9 of the affidavit of Mallika De Toni sworn on 20 March 2026, as well as posted to both the address referred to in para 6 of the affidavit of Mallika De Toni sworn on 20 March 2026 and 'Remade in Australia Limited', Level 4, 111 Coventry Street, Southbank VIC 3006, and that copies of the Documents can also be provided upon request by calling (08) 6169 2510 and providing a current postal or email address.

4.    Upon the plaintiffs complying with the terms of order 3 above, the Documents are to be taken to have been personally served upon the fifth defendant.

5.    The plaintiffs must file an affidavit deposing to the occurrence of the events contemplated in order 3 above as soon as practicable after the happening of those events.

6.    Until further order of this Court or until the fifth defendant files a notice of address for service, the plaintiffs have leave pursuant to r 10.24 of the Rules to effect service of any other document in this proceeding on the fifth defendant by taking each of the following actions:

(a)    sending by ordinary post copies of the document to the following addresses:

(i)    the address that is referred to in para 6 of the affidavit of Mallika De Toni sworn on 20 March 2026;

(ii)    'Remade in Australia Limited', Level 4, 111 Coventry Street, Southbank VIC 3006; or

(iii)    any other postal address provided by the fifth defendant;

(b)    emailing a portable document format (pdf) copy of the document to the following email addresses:

(i)    email address referred to at para 9 of the affidavit of Mallika De Toni sworn on 20 March 2026; or

(ii)    any other email address provided by the fifth defendant; and

(c)    sending an SMS message to the telephone number referred to at para 8 of the affidavit of Richard Mumford affirmed on 16 March 2026 and a message on LinkedIn to the fifth defendant to the effect that the document has been sent as contemplated by paras (a) to (b) of order 6 in an attempt to bring the document to her attention.

7.    Costs reserved.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    The plaintiffs are the liquidators of ACN 009 068 473 Pty Ltd (ACN Pty Ltd). In these proceedings, the plaintiffs are seeking declarations that certain payments that were made by ACN Pty Ltd to the first defendant, the Commissioner of Taxation, are unfair preferences for the purposes of s 588FA of the Corporations Act 2001 (Cth), insolvent transactions for the purposes of s 588FC of that Act, and voidable transactions for the purposes of s 588FE(2) of that Act.

2    Several other defendants were joined as parties to the proceedings as a result of an order made by the Court on 27 November 2025. One of those defendants is Ms Nicki Anderson, who is now the fifth defendant.

3    By an interlocutory application that was accepted for filing on 10 April 2026, the plaintiffs apply for various orders, including an order pursuant to r 10.24 of the Federal Court Rules 2011 (Cth) (Rules) for substituted service on Ms Anderson of the originating process and other documents filed in these proceedings, including a copy of the orders made on 27 November 2025 (together, the Documents). For the following reasons, it is appropriate to make an order for substituted service, together with other ancillary orders.

4    The relevant principles to be applied are well settled. 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'.

5    In Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10], Colvin J said:

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.

6    Further, in Kosmos Capital Pty Ltd v Turiya Ventures LLC [2019] FCA 528, in relation to r 10.23 which also applies if it is 'not practicable to serve a document on [a] person in a way required by [the] Rules', 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. 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. 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. Evidence of attempts to serve, attempts to speak by telephone and lack of knowledge of whereabouts will be relevant to the question of practicability.

(citations omitted)

7    The plaintiffs rely on several affidavits in support of their application for substituted service, namely the affidavits of:

(a)    Ms Alysha Anne Burrows affirmed 26 February 2026;

(b)    Mr Brent Speck sworn 26 February 2026;

(c)    Mr Richard Mumford affirmed 16 March 2026;

(d)    Ms Mallika De Toni sworn 20 March 2026; and

(e)    Ms Amanda Kelly Gardinder affirmed 20 April 2026.

8    Based on that evidence, I am satisfied that it is not sensible or realistic to effect personal service of the Documents on Ms Anderson. In particular, I am satisfied that the plaintiffs have experienced difficulties in locating and contacting Ms Anderson, and that the plaintiffs have made several unsuccessful attempts to effect personal service of the Documents on Ms Anderson. In that regard I accept that:

(a)    a 'skip trace' was conducted, which involved carrying out searches of 'official databases' Australia-wide to ascertain Ms Anderson's whereabouts;

(b)    a process server went to an address that is listed on the register maintained by the Australian Securities and Investments Commission (ASIC) for ACN Pty Ltd to effect service of the Documents but was told that Ms Anderson did not live there anymore;

(c)    unsuccessful attempts have been made to telephone and to send text messages to Ms Anderson on a mobile number to which she is connected;

(d)    on two occasions a process server went to an address listed on the register maintained by ASIC for another company of which Ms Anderson is a director, Remade in Australia Limited (Remade), for the purpose of effecting service of the Documents, but was told by the occupant that she had purchased the property at the address from a 'Nikki' 10 years beforehand;

(e)    a process server went to the registered office of Remade for the purpose of effecting service of the Documents and was told that Ms Anderson is a director of Remade, that she lives interstate (but was not given a specific interstate address) and that documents could be forwarded to Ms Anderson if required;

(f)    an email was sent to an email address Ms Anderson used during her dealings with ACN Pty Ltd, which attached the orders that were made on 27 November 2025 and requested information concerning Ms Anderson's current address, but there was no response to that email; and

(g)    a similar message was sent to Ms Anderson's LinkedIn profile, but there was also no response to that message.

9    Accordingly, I am satisfied that the plaintiffs are unable to serve Ms Anderson personally, using reasonable efforts.

10    I am also satisfied that, in all probability, the following steps proposed by the plaintiffs will bring the relevant documents to the attention of Ms Anderson:

(1)    sending by ordinary post copies of the Documents to the following addresses:

(a)    the address that is referred to in para 6 of the affidavit of Mallika De Toni sworn on 20 March 2026; and

(b)    'Remade in Australia Limited', Level 4, 111 Coventry Street, Southbank VIC 3006;

(2)    emailing portable document format (pdf) copies of the Documents to the email address referred to in para 9 of the affidavit of Mallika De Toni sworn on 20 March 2026;

(3)    sending a message on LinkedIn to the fifth defendant in the following terms:

IMPORTANT: YOUR URGENT ATTENTION IS REQUIRED. DO NOT IGNORE THIS MESSAGE.

You have been joined as a defendant to Federal Court of Australia proceedings WAD 378 of 2025, a proceeding commenced by the liquidators of ACN 009 068 473 Pty Ltd (In Liquidation). We have been trying to contact you in respect of this proceeding to serve you with the following documents:

(a)    originating process filed on 21 October 2025;

(b)    statement of claim filed on 14 November 2025; and

(c)    orders of Jackson J on 27 November 2025.

It has been ordered by the Federal Court of Australia that service of the above documents in the proceeding be effected on you by this notice.

If you wish to defend this action, you must file a defence with the Federal Court of Australia within 14 days. If you fail to file a notice of address for service, or fail to file a defence in the required time, then judgment may be entered against you or other orders adverse to your interests may be made.

We urge you to seek independent legal advice in respect of this message.

It is very important that you do not ignore this message.

(4)    sending an SMS message to the telephone number referred to at para 8 of the affidavit of Richard Mumford affirmed on 16 March 2026 in the following terms:

IMPORTANT: YOUR URGENT ATTENTION IS REQUIRED. DO NOT IGNORE THIS MESSAGE.

You have been joined as a defendant to Federal Court of Australia proceedings WAD 378 of 2025, a proceeding commenced by the liquidators of ACN 009 068 473 Pty Ltd (In Liquidation). We have been trying to contact you in respect of this proceeding to serve you with the following documents:

(a)    originating process filed on 21 October 2025;

(b)    statement of claim filed on 14 November 2025; and

(c)    orders of Jackson J on 27 November 2025.

It has been ordered by the Federal Court of Australia that service of the above documents in the proceeding be effected on you by this notice.

If you wish to defend this action, you must file a defence with the Federal Court of Australia within 14 days. If you fail to file a notice of address for service, or fail to file a defence in the required time, then judgment may be entered against you or other orders adverse to your interests may be made.

We urge you to seek independent legal advice in respect of this message.

It is very important that you do not ignore this message.

(5)    ensuring that the messages referred to in (3) and (4) above include information that copies of the Documents have been emailed to the email address referred to at para 9 of the affidavit of Mallika De Toni sworn on 20 March 2026, as well as posted to both the address referred to in para 6 of the affidavit of Mallika De Toni sworn on 20 March 2026 and 'Remade in Australia Limited', Level 4, 111 Coventry Street, Southbank VIC 3006, and that copies of the Documents can also be provided upon request by calling (08) 6169 2510 and providing a current postal or email address.

11    In relation to the address referred to at [10(1)(a)], I am satisfied that although the process server who attended at that address for the purpose of effecting service of the Documents did not locate Ms Anderson, the evidence before me establishes that she is a co-owner of that property.

12    As for the address referred to at [10(1)(b)], the evidence before me establishes that the process server who attempted to effect personal service at that address was told by a person who was present at that time that Ms Anderson is a member of the board of directors of Remade, that she lives in a state outside of Victoria and that documents could be forwarded to her if required.

13    In relation to the proposed steps referred to at [10(2)] and [10(3)], the evidence before me establishes that the email address that is proposed to be used is one that Ms Anderson has previously used when acting as a director of ACN Pty Ltd. Further, the mobile number referred to at [10(4)] was provided to the process server by a person representing themselves as a co-owner of the property identified in [10(1)(a)] when an attempt was made to serve the Documents at that address.

14    Accordingly, I am satisfied that if all those steps are used in combination with each other and, in particular, in combination with sending the Documents by ordinary post to the registered office of Remade, the Documents will in all probability be brought to the attention of Ms Anderson.

15    I am also of the view that it is appropriate to make further orders to the following effect pursuant to r 10.24:

(1)    Upon the plaintiffs carrying out the steps I have outlined above, the Documents are to be taken to have been personally served upon the fifth defendant.

(2)    The plaintiffs must file an affidavit deposing to the occurrence of the events contemplated by those steps as soon as practicable after the happening of those events.

(3)    Until further order of this Court or until the fifth defendant files a notice of address for service, the plaintiffs have leave pursuant to r 10.24 of the Rules to effect service of any other document in this proceeding on the fifth defendant by taking all of the following actions:

(a)    sending by ordinary post copies of the document to the following addresses:

(i)    the address that is referred to in para 6 of the affidavit of Mallika De Toni sworn on 20 March 2026; and

(ii)    ‘Remade in Australia Limited’, Level 4, 111 Coventry Street, Southbank VIC 3006; or

(iii)    any other postal address provided by the fifth defendant;

(b)    emailing a portable document format (pdf) copy of the document to the following email addresses:

(i)    the email address referred to in para 9 of the affidavit of Mallika De Toni sworn on 20 March 2026; or

(ii)    any other email address provided by the fifth defendant; and

sending an SMS message to the telephone number referred to at para 8 of the affidavit of Richard Mumford affirmed on 16 March 2026 and a message on LinkedIn to the fifth defendant to the effect that the document has been sent as contemplated by paras (3)(a) to (3)(b) above in an attempt to bring the document to her attention.

Associate:

Dated:    22 April 2026