Federal Court of Australia

Lu v Gong [2026] FCA 612

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 10.48 of the Federal Court Rules 2011 (Cth), the notice of cross-claim and statement of cross-claim filed on 6 March 2026 in this proceeding and the Form 26A filed on 14 April 2026 in this proceeding (Documents) are taken to have been served on the Fourth Cross-Respondent by the Cross-Claimant having sent a copy of those documents to the Fourth Cross-Respondent:

(a)    by email to immibusiness@163.com on 29 April 2026; and

(b)    by hand delivery on 30 April 2026 to the following address: Room 1702, Building 1, Lane 1550, Pingliang Road, Yangpu District, Shanghai, China.

2.    Within 7 days of the date of these orders, the Cross-Claimant send:

(a)    a copy of these orders and the accompanying reasons for judgment to the Fourth Cross-Respondent by email to immibusiness@163.com; and

(b)    a text message to the Fourth Cross-Respondent using the Mobile Number referred to in the accompanying reasons for judgment informing the Fourth Cross-Respondent of these orders and the accompanying reasons for judgment and the email referred to in paragraph (a).

3.    Until such time as the Fourth Cross-Respondent files and serves a notice of address for service, the parties have leave to serve any further documents in this proceeding on the Fourth Cross-Respondent by sending those documents by email to immibusiness@163.com, and those documents will be taken to have been served on the Fourth Cross-Respondent on the date that those emails are sent.

4.    The costs of and incidental to the Cross-Claimant’s interlocutory application dated 6 May 2026 be reserved.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    By interlocutory application dated 6 May 2026, the cross-claimant, the State of Victoria (State), seeks the following orders:

(a)    pursuant to r 10.48, alternatively r 10.23, of the Federal Court Rules 2011 (Cth) (Rules), the notice of cross claim and statement of cross claim filed on 6 March 2026 in this proceeding and the Form 26A filed on 14 April 2026 in this proceeding (initiating documents) are taken to have been served on the fourth cross-respondent, Yeyan (Kate) Xiong (Ms Xiong);

(b)    alternatively, pursuant to r 10.49, alternatively r 10.24, of the Rules, the State has leave to serve the initiating documents on the fourth cross-respondent by:

(i)    emailing them, alongside a copy of the orders giving effect to this application, to immibusiness@163.com; and

(ii)    hand delivering a copy of them, alongside a copy of the orders giving effect to this application, to Ms Xiong’s known address in China, being Room 1702, Building 1, Lane 1550, Pingliang Road, Yangpu District, Shanghai, China; and

(c)    pursuant to rr 1.34, 10.23, 10.24, 10.48 and/or 10.49 of the Rules, until such time as Ms Xiong files and serves a notice of address for service, the parties have leave to serve any further documents in this proceeding on Ms Xiong by sending those documents by email to immibusiness@163.com, and those documents will be taken to have been served on Ms Xiong on the date that those emails are sent.

2    The interlocutory application is supported by two affidavits of Ben Dodgshun made on 6 and 7 May 2026. Mr Dodgshun is a partner at Minter Ellison, who are the solicitors for the State.

3    For the reasons that follow, I will make an order under r 10.48 that the initiating documents are taken to have been served on Ms Xiong, and ancillary orders sought by the State.

Background

4    The proceeding was commenced on 6 August 2025. It has progressed slowly as a result of difficulties in serving two of the defendants and certain of the cross-respondents.

5    The plaintiffs are citizens of the People’s Republic of China. The proceeding concerns investments made by the plaintiffs in Australia as a condition of the grant of a visa to reside in Australia known as the Significant Investment Visa. By way of overview, the plaintiffs allege that:

(a)    To be eligible for the Significant Investor Visa, an applicant was required to be nominated by an Australian State or Territory and invest an amount of at least $5 million in complying investments in Australia.

(b)    In September 2013, the plaintiffs appointed Yeyan (Kate) Xiong of Jiajing Business Consulting (Shanghai) Co., Ltd to act as their sole agent in relation to their applications for Significant Investor Visas.

(c)     On 20 December 2013, Ms Xiong attended an event hosted by the State in Shanghai, China. Also in attendance were: the then Premier of Victoria, Denis Napthine; Patrick Stringer, who in 2013 and 2014 was the Commissioner – Trade and Investment for Greater China and Mongolia, based in the Victorian Government’s Trade and Investment Office located in Shanghai, China (VGTI Shanghai Office); Xiaowei (Jessie) Gong, who in 2013 and 2014, was the Significant Investment Manager – Greater China, based in the VGTI Shanghai Office; and Alande Mustafa Safi who, at all relevant times, was the sole director of Paragon Business Group Pty Ltd (Paragon) which carried on a mortgage broking business and provided lending services to customers. Paragon’s business also involved promoting a ‘deposit lending product’ as a complying investment for the purposes of the Significant Investor Visa. The plaintiffs allege that, at that event, Mr Stringer and Ms Gong made representations to Ms Xiong including that the State recommended and endorsed Paragon’s deposit lending product, that the product was a safe investment and that it was an investment that offered a capital guarantee with a secured investment and fixed investment return.

(d)    At a subsequent meeting on 26 May 2014, Mr Stringer and Ms Gong made similar representations to Ms Xiong about Paragon’s deposit lending product.

(e)    The representations referred to in paragraphs (c) and (d) (product representations) were false or misleading.

(f)    Ms Gong received financial benefits (directly or indirectly) in connection with her promotion of Paragon’s deposit lending product. None of Ms Gong, Mr Stringer or the State informed Ms Xiong or the plaintiffs about those financial benefits. In those circumstances, Ms Gong, Mr Stringer and the State represented to Ms Xiong (expressly or by implication) that no financial benefit (direct or indirect) would be received by Ms Gong in connection with her promotion of Paragon’s deposit lending product (no benefits representation).

(g)    On or about 11 August 2014, Ms Xiong lodged applications with the State on behalf of the plaintiffs for nominations to apply for Significant Investor Visas. The nomination applications nominated government bonds of Victoria issued by the Treasury Corporation of Victoria (TCV Bonds) as the complying investment.

(h)    On or about 3 December 2014, Ms Xiong informed the plaintiffs of the product representations. In reliance on the product representations and the no benefits representation, the plaintiffs determined to change their chosen complying investment from TCV Bonds to the Paragon’s deposit lending product.

(i)    In August 2015, each of the plaintiffs invested sums totalling $7 million in a ‘deposit lending product’ offered by Paragon, pursuant to the terms stated on a document titled ‘Investment Application Form’. The investment sum was repayable within 4 years.

(j)    In September 2015, the plaintiffs were notified that they had been issued with a Significant Investor Visa by the Commonwealth of Australia.

(k)    The plaintiffs have not been repaid their investments in accordance with the contractual terms. Paragon was wound up and had liquidators appointed pursuant to orders of the Court made on 23 August 2019.

6    The plaintiffs allege that, by making the product representations and the no benefits representation, each of Ms Gong, Mr Stringer and the State engaged in misleading and deceptive conduct or made a false or misleading representation in contravention of ss 18 and 29 of the Australian Consumer Law (as a law of the Commonwealth, alternatively as a law of the State of Victoria), alternatively ss 12DA and 12DB of the Australian Securities and Investments Commission Act 2001 (Cth), and seek damages pursuant to those statutes.

7    The State has brought a cross-claim against Ms Gong, Mr Stringer, Paragon and Ms Xiong seeking contribution and/or indemnity pursuant to Pt IV of the Wrongs Act 1958 (Vic) or in equity.

8    There was delay in the plaintiffs and the State serving process on Mr Stringer and Ms Gong, but that has now been done.

9    The State’s interlocutory application concerns service on Ms Xiong who is a citizen of, and resident in, China. The State has joined Ms Xiong to the proceeding as a cross-respondent. In respect of Ms Xiong, the State alleges that, if it is found liable to the plaintiffs (which it denies), and that liability is not apportionable, Ms Xiong is also liable to the plaintiffs for the same loss or damage because she was negligent in advising the plaintiffs.

10    Mr Dodgshun deposed that, in March 2026, Minter Ellison sought contact details for Ms Xiong from the plaintiffs’ solicitors. The plaintiffs’ solicitors provided the following information:

(a)    Ms Xiong’s residential address is Room 1702, Building 1, Lane 1550, Pingliang Road, Yangpu District, Shanghai, China (Pingliang Road Address);

(b)    Ms Xiong’s email address is immibusiness@163.com (Email Address), and the plaintiffs’ solicitors had received emails from Ms Xiong at the Email Address in August 2025.

11    An email from Ms Xiong at the Email Address sent on 28 August 2015 also contained a China mobile telephone number (Mobile Number) beneath Ms Xiong’s name at the end of the email.

12    On 29 April 2026, Minter Ellison sent a copy of the initiating documents to the Email Address. No response was received to that email. On the same day, Minter Ellison engaged a law firm in China, Shanghai Rewin Law Firm (Rewin), to attempt personal service of the initiating documents and a covering letter, in Mandarin and English, at the Pingliang Road Address. Rewin confirmed by return email on the same day, and later by way of a formal record of service on 6 May 2026, that:

(a)    Ms Xiong was not present at the Pingliang Road Address. A man residing at the Pingliang Road Address identified himself as Ms Xiong’s father and stated that Ms Xiong does not reside at the address. However, he confirmed that the Mobile Number belonged to Ms Xiong. The initiating documents and covering letter were left with Ms Xiong’s father at the Pingliang Road Address and he undertook to pass the documents to Ms Xiong.

(b)    Ms Xiong answered a call made to the Mobile Number. The representative of Rewin identified himself and explained that he was instructed to serve documents relating to Australian court proceedings upon Ms Xiong. Ms Xiong stated “I do not know you or what this is about” and immediately hung up.

(c)    Rewin sent Ms Xiong a text message at the Mobile Number which stated that the initiating documents had been left at the Pingliang Road Address with her father and that her father confirmed that he would pass the initiating documents to her as soon as possible.

13    Australia and China are both Contracting Parties to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention). Subsequently, and in support of its application for orders for deemed or substituted service, Minter Ellison accessed the website maintained by the Hague Conference on Private International Law at a page titled “China – Central Authority & practical information”. The page stated that the time for execution of a request under the Hague Convention by China’s nominated Central Authority, the International Legal Cooperation Center, was around six months. A note at the bottom of the website page records that it was last updated on 15 January 2026.

Service outside of Australia

14    Service of an originating process outside of Australia requires the authority of a statute or the rules of court made pursuant to statute: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Service of process outside Australia is governed by Div 10.4 of the Rules, which was substantially amended with effect from 13 January 2023. As observed by Moshinsky J in The Noco Company v Hong Kong Haowei Technology Co Ltd [2023] FCA 533 at [9], the main change was to remove the requirement for leave before service of an originating application outside of Australia in the categories of cases set out in r 10.42. This proceeding falls within a number of those categories and, accordingly, leave to serve the originating application on Ms Xiong outside Australia is not required.

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

16    Under r 10.46, a document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected.

17    As China is a party to the Hague Convention, service on its residents is ordinarily to be effected in accordance with the articles of that Convention and Div 10.6 of the Rules, which sets out the process for effecting service in a Hague Convention country.

18    The applicant has applied for an order of deemed service under r 10.48 of the Rules. Under that rule, a party may apply for an order that a document is taken to have been served if:

(a)    it is not practicable to serve the document on the person outside Australia in accordance with a convention, the Hague Convention or the law of the country in which the person resides; and

(b)    the party provides evidence that the document has been brought to the attention of the person.

19    The applicant has satisfied me that condition (b) is satisfied. The requirement in rule 10.48 that a document has been brought to the attention of a person does not require that the person “accorded it attention or acknowledged it”: British American Tobacco Australasia Ltd v Taleb (No 1) [2012] FCA 1065 (Taleb) at [46] (Dodds-Streeton J); Australian Competition and Consumer Commission v Safety Compliance Pty Ltd (in liq) (No 3) [2016] FCA 303 at [10] (Farrell J). The requirement will be satisfied where there is evidence of actions, steps and circumstances which, alone or in combination, support an inference that the documents have been brought to the relevant person’s attention on the balance of probabilities: Taleb at [50] (Dodds-Streeton J). See also Hall v Hemant Investments Pty Ltd [2025] FCA 776 at [9] (Longbottom J). In the present case, I am satisfied that the initiating documents have been physically given to Ms Xiong’s father, who has said that he will give the documents to his daughter, and there has been direct communication with Ms Xiong via her mobile phone number of those circumstances.

20    The question whether condition (a) is fulfilled is more difficult. The State has not attempted service on Ms Xiong in accordance with the Hague Convention. Instead, it has attempted to serve Ms Xiong personally in China. That has not resulted in Ms Xiong accepting service and submitting to the jurisdiction of this Court. In support of its application that it is not practicable to serve the initiating documents on Ms Xiong in accordance with the Hague Convention, the State has adduced evidence that the time for execution of a request under the Hague Convention by China’s nominated Central Authority, the International Legal Cooperation Center, was around six months. The State submits that a delay of six months, in the circumstances of this case, renders service in accordance with the Hague Convention not practicable.

21    The phrase “not practicable” appears in both rule 10.24 (which addresses substituted service) and rule 10.48 (which addresses deemed service outside Australia) and has been construed in the same manner. The authorities have consistently stated that, while inconvenience to a party does not satisfy the test of “not practicable”, it is not necessary to prove that it is impossible to effect service in accordance with the Rules. In Sanum Investments Limited v ST Group Co, Ltd (No 2) [2019] FCA 1047, Foster J stated (at [148]):

The cases to which I have referred support the proposition that, in order to prove that service is impracticable, an applicant is not required to prove that it is impossible or futile to effect service as required. In addition, in the context of r 10.48 FCR, an applicant for relief under that rule is not required to undertake service in accordance with the strict requirements of the relevant law before seeking relief pursuant to r 10.48. It should also be remembered that, although mere inconvenience may not be enough to constitute “impracticability”, r 10.48 FCR is intended to ameliorate the stultification of cases against foreign defendants caused by an unduly cumbersome and uncertain set of requirements governing service of this Court’s process in a foreign country. In my judgment, once this court is satisfied that its process and other documents have come to the attention of the foreign defendants, it should not hesitate to deem service to have been effective if there is any suggestion that the law of the relevant foreign country as to service will unreasonably delay or even frustrate the progress of the proceeding.

22    Although the State has not attempted service on Ms Xiong in accordance with the Hague Convention, a significant impediment to such service is the fact that the State does not presently have a residential address for Ms Xiong. The evidence indicates that the Pingliang Road Address, which was provided to the State by the plaintiffs, is the residential address of Ms Xiong’s father and is not the residential address of Ms Xiong. The inability to obtain an address for service is a relevant factor in assessing whether it is not practicable to effect service under the Hague Convention: see Australian Competition & Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035 at [18] (French J).

23    The question of practicability in this case involves a balance between two competing considerations. The first are considerations of international comity and the importance of personal service. In Park v Tschannen [2016] FCA 137; 341 ALR 452, Edelman J observed (at [16]):

It would not be consistent with comity for an agreed regime to provide for a form of service outside the jurisdiction if the laws of that jurisdiction permitted a party immediately to substitute an alternative form of service. As Dixon CJ, Williams and Webb JJ remarked, if the position were otherwise, “the strict conditions regulating and limiting service out of the jurisdiction upon defendants abroad would be ineffective; for they could be avoided by obtaining an order for substituted service within the jurisdiction”: Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310, 325. Another reason is the importance of personal service and the need for some reason to exist before orders are made for departure from it. As the High Court observed at 323 in Laurie, service was historically closely associated with jurisdiction and it had been assumed that the foundation of jurisdiction was physical power. That historical foundation is one of the reasons for the importance of personal service. The other is its foundations in natural justice.

24    The second are considerations of efficiency and practicality in the conduct of these proceedings, as promoted by s 37M of the Federal Court of Australia Act 1976 (Cth). In that regard, it is relevant that the proceeding was initiated some time ago and that service has now been effected on all parties other than Ms Xiong. It is also relevant that the State does not have a current address for service for Ms Xiong. It is therefore possible that service under the Hague Convention will take longer than the six months that is estimated on the website maintained by the Hague Conference on Private International Law.

25    On balance, I consider that in the circumstances of this proceeding it is not practicable for the State to serve Ms Xiong under the Hague Convention because of the lengthy delay that would be involved in effecting service and the possibility that service would not ultimately be successful.

Conclusion

26    In conclusion, I will make an order under r 10.48 that the initiating documents are taken to have been served on Ms Xiong, and ancillary orders sought by the State.

Associate:

Dated:    15 May 2026

SCHEDULE OF PARTIES