Federal Court of Australia

Morrell v Sundance Marine Pty Ltd (Substituted Service) (No 2) [2026] FCA 1049

ORDERS

THE COURT ORDERS THAT:

1.    Service in accordance with the Federal Court Rules 2011 (FCR) and Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at the Hague on 15 November 1965 of the notice of cross-claim and statement of cross-claim dated 22 August 2025 and accepted for filing by the Federal Court of Australia on 24 August 2025 (together the Cross-claim) on the cross-respondent be dispensed with.

2.    Pursuant to r 10.24 of the FCR, the cross-claimant have leave to effect service of the Cross-claim on the cross-respondent by:

(a)    sending a copy of the Cross-claim and a certified French translation of the Cross-claim in PDF form as attachments to an email addressed to Vincent Monod at [email address set out in order];

(b)    sending, by email addressed to Vincent Monod at [email address set out in order], an electronic link to download and access a copy of the Cross-claim and a certified French translation of the Cross-claim; and

(c)    providing to the commissaire de justice in France a copy of the Cross-claim and a certified French translation of the Cross-claim, with instructions to deliver these documents to the cross-respondent at its registered office at 34 rue Eric Tabarly, Parc d’Activités de l’Eraudière, 85170 Dompierre-sur-Yon, France, represented by its legal representative, duly authorized, BENETEAU, a French public limited company with a board of directors (“Société anonyme à conseil d’administration”) having its registered office at 16 boulevard de la Mer, Les Embruns, 85800 Saint-Gilles-Croix-de-Vie, France, registered with the Trade and Companies Register of La Roche-sur-Yon under number 487 080 194.

3.    At the time of sending the documents by the methods referred to in order 2(b) and 2(c) above, the cross-claimant must also provide to the cross-respondent a copy of:

(a)    the judgment of Morrell v Sundance Marine Pty Ltd (Substituted Service) [2026] FCA 304 (First Judgment);

(b)    the judgment of Morrell v Sundance Marine Pty Ltd (Substituted Service) (No 2) [2026] FCA 1049 (Second Judgment);

(c)    these orders;

(d)    a certified French translation of the Cross-claim;

(e)    a certified French translation of the First Judgment;

(f)    a certified French translation of the Second Judgment; and

(g)    a certified French translation of these Orders.

4.    Within 35 days of these orders being made, the cross-claimant serve the Cross-claim on the cross-respondent in accordance with order 2 above.

5.    Pursuant to r 10.24 of the FCR, upon the cross-claimant satisfying the terms of order 2 above, the Cross-claim is taken to have been personally served upon the cross-respondent.

6.    The cross-respondent file a notice of address for service within 43 days after service in accordance with order 2 above, measured from the latest event which completed service under order 2(a), (b) and (c).

7.    Pursuant to r 1.39 of the FCR, the time for the cross-claimant to serve the Cross-claim on the cross-respondent be extended to 30 September 2026.

8.    By 30 September 2026, the cross-claimant (by its solicitors) is to file and serve an affidavit deposing to service and sending of the documents referred to in orders 2 and 3 above.

9.    The costs of the interlocutory application dated 6 March 2026 be reserved.

10.    The costs of the case management hearing on 27 July 2026 be reserved.

11.    A case management hearing is listed in the week of 26 October 2026, on a date to be advised.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1    On 24 July 2026, the Respondent and Cross-Claimant (Sundance) renewed its application for orders to permit substituted service outside Australia by way of email on the Cross-Respondent of the notice of cross-claim and statement of cross-claim, both dated 22 August 2025. I dismissed an earlier application for substituted service in March of this year: Morrell v Sundance Marine Pty Ltd (Substituted Service) [2026] FCA 304 (Sundance (No 1)).

2    Sundance relies on an affidavit of Mr Mark Attard from Kennedys (Australasia) Pty Ltd sworn on 24 July 2026 (Attard affidavit). The Applicant (Mr Morell) supports the application. This renewed application was heard on 27 July 2026.

3    For the following reasons, I make orders for substituted service. However, the Respondent is to serve these documents not only by email, but also in accordance with domestic French law. Further, the Respondent is to serve copies of the relevant documents translated into French, as well as the original documents in English.

SUPPLEMENTARY Background

4    Background to earlier application (at Mar 2026): The background to this matter is set out in Sundance (No 1) at [4]-[9], and the legal principles for substituted service outside Australia under the Federal Court Rules 2011 (Cth) are summarised in [10]-[22]. The key points are:

(a)    Mr Morrell is suing Sundance for alleged defects in a yacht purchased from Sundance. Sundance contends that, if Sundance is liable to Mr Morell for any loss or damage, then the Cross-Respondent (Beneteau or SPBI) is obliged to provide a contribution in respect of that liability.

(b)    In October 2025, the Group General Counsel for Beneteau (Mr Vincent Monod) stated in an email to Kennedys that Beneteau would not accept service by email, as follows:

Beneteau does not accept service of the cross-claim by email. If you wish to serve the cross-claim on Beneteau, please do so in a manner that complies with the requirements of French Law or the Hague Convention.

We note that the contracts referred to in the cross-claim contain arbitration clauses. In light of that, if you proceed to serve the cross-claim on Beneteau, Beneteau reserves the right to apply to the Federal Court of Australia for the proceedings against it to be stayed and for costs to be awarded against your client.

(c)    Kennedys applied to serve Beneteau in accordance with the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters [2010] ATS 23 (Hague Convention) and provided all the necessary documents by 17 October 2025. Kennedys did not provide French translations of the documents to be served.

(d)    At 25 February 2026, the French Central Authority advised the Registry of this Court that it had seized jurisdiction the day before Christmas, and that they would have to wait two to three months to accomplish service. That correspondence indicated that the French Central Authority thought that the entity to be served was Sundance. Registry stated that it had sent an email to the French Central Authority stating that the entity to be served was SPBI, not Sundance.

5    Sundance (No 1): On 20 March 2026, I refused the application for substituted service. At the time of that application, the period taken to attempt service on Beneteau under the Hague Convention was about five months: Sundance (No 1) at [24]. The evidence before the Court was that the process for serving Beneteau in France was ongoing: there was no suggestion that the French Central Authority was unable to serve Beneteau, or had tried unsuccessfully to serve Beneteau. I was not satisfied that, at the time of that application, service of the Cross-Claim in accordance with the Hague Convention was “not practicable” within r 10.24 of the Rules: Sundance (No 1) at [26]-[28].

6    Further background: The Attard affidavit sets out what has occurred since March 2026.

    On 29 April 2026, Ms Aherne from Kennedys emailed the Registry requesting an update in respect of the service of documents on Beneteau.

    On 1 May 2026, Ms Ko from NSW Registry emailed stating that the Court had not received any updates from the French Central Authority and that the Judicial Registrar was willing to follow up directly with the French Central Authority. Later that day, Kennedys confirmed that the parties were content for the Judicial Registrar to contact the French Central Authority.

    On 11 May 2026, Ms Ko confirmed that the Judicial Registrar had sent an official letter to the French Central authority.

    On 13 May 2026, Ms Koh emailed stating that the French Central Authority had conveyed to the Court that they had sent a follow up to the French competent jurisdiction to confirm which entity was served and the status of service.

    On 4 June 2026, Ms Aherne emailed Ms Ko asking whether service had been effected on Beneteau.

    On 5 June 2026, Ms Ko replied saying that she was still waiting for a response from the French Central Authority.

    On 21 July 2026, Mr Attard emailed Ms Ko asking whether there were any updates from the French Central Authority, and noting that the proceeding was next before the Court on 27 July 2026.

    On 22 July 2026, Ms Ko emailed Mr Attard stating that she had sent an urgent follow up request to the French Central Authority.

    On 23 July 2026, Ms Ko emailed stating that the French Central Authority had responded that they had not received an update from the local authorities who are executing the service request and presently, all the French Central Authority was able to do was to request an update. Ms Ko stated that the Court had sent an email respectfully requesting that a follow up be sent to the relevant local authorities.

Consideration

7    Is ordinary service “not practicable” in this case? The issue in this application is whether the usual method of service is “not practicable” under r 10.24 of the Rules. That issue in turn can be framed as whether I am satisfied that Sundance, using reasonable efforts, is unable to serve Beneteau in accordance with the applicable requirements under the Hague Convention: see Sundance No 1 at [23], and the cases cited.

8    Sundance relies on the principles set out by O’Bryan J in Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173 at [33], summarised in Sundance (No 1) at [20]. In Lu v Gong [2026] FCA 612 at [23]-[24], O’Bryan J stated that the question of “practicability” under rr 10.24 and 10.48 in that case involved balancing two competing considerations: (1) international comity and the importance of personal service; and (2) considerations of practicality and efficiency in the conduct of the proceedings, as promoted by s 37M of the Federal Court of Australia Act 1976 (Cth). The same is true in this case.

9    The factors referred to in Sundance (No 1) at [24]-[27] are essentially the same, but the balance between international comity and efficiency in conducting these proceedings has changed. Since March 2026, there has been a further four months of delay, and in July 2026 there is still a lack of clarity about when service might be accomplished in France by the local authorities. I am satisfied that service by email will bring the cross-claim to the attention of Beneteau (and indeed, previous emails between Kennedy and Mr Monod means that Beneteau would already have some general awareness about Sundance’s cross-claim).

10    In Sundance (No 1) at [30], I was concerned that an order for substituted service by email would not promote the efficient resolution of the proceeding, because Beneteau has indicated that it will not accept service by email: see [4](b) above. On reflection, I have decided to make an order for substituted service, despite this concern.

    First, as set out below, it now appears that an additional form of substituted service is available; namely, service in accordance with French law by the French office of Kennedys. In light of the confusion that seems to have followed from attempting to serve documents only in English, I will also require that French translations of the relevant documents be served with the original documents.

    Second, I am satisfied that there are procedural avenues available to Sundance, if Beneteau were to ignore an originating application served on it by email and served in accordance with French domestic law. For example, Sundance might seek default judgment against Beneteau.

    Third, it is true that the possibility remains that Beneteau may seek to argue that Sundance pursuing the cross-claim in these proceedings is contrary to the arbitration clause in the contract between Beneteau and Sundance. However, that issue can be dealt with if and when it arises. Currently, the inability to serve Beneteau has stymied the proceedings beginning at all.

11    Form of substituted service: There remains the question about the form of substituted service. Sundance initially proposed that it would serve the relevant documents by email, sent to Mr Monod’s email address. Mr Attard states that the Beneteau website states that Mr Monod is still the General Counsel at Beneteau. As noted, Mr Monod has replied to an email from Kennedys sent to that address, so I can be satisfied that using this email will bring Sundance’s cross-claim to the attention of Beneteau.

12    However, it became apparent for the first time at the 27 July 2026 hearing that Kennedys (the solicitors for Sundance) has a French office. Accordingly, it is feasible for Sundance to serve its cross-claim on Beneteau in accordance with the usual requirements for service under the domestic law of France, as well as by email. To avoid any possible confusion, I will order that a French translation of all documents be prepared, and served with the English documents. The documents to be served (and their translations) should be accompanied by these orders for substituted service, the reasons in Sundance (No 1) and these reasons, together with French translations of these additional documents as well.

13    Notice under Rules r 10.43B: Finally, r 10.43B of the Rules provides that, if a person is to be served outside Australia with an originating application, the person must also be served with a notice, in accordance with Form 26A, informing the person of:

(a)    the scope of the jurisdiction of the Court in respect of proceedings against persons who are served outside Australia; and

(b)    the grounds alleged by the applicant to found jurisdiction; and

(c)    the person’s right to challenge service of the originating application or the jurisdiction of the Court or to file a conditional appearance.

14    The Respondent has prepared a draft notice, which is annexed to these reasons. I am satisfied that the draft notice meets the requirements of r 10.43B.

Associate:

Dated:    31 July 2026

annexure - form 26A notice

Form 26A

Rule 10.43B

Notice to person served outside Australia

Federal Court of Australia

District Registry: Victoria

Division: General    VID633/2025

DAVID MORRELL

Applicant

SUNDANCE MARINE PTY LTD (ACN 600 309 644)

Respondent

SUNDANCE MARINE PTY LTD (ACN 600 309 644)

Cross-claimant

SPBI, A FRENCH SIMPLIFIED JOINT STOCK COMPANY (“SOCIÉTÉ PAR ACTIONS SIMPLIFIÉE”), REGISTERED WITH THE TRADE AND COMPANIES REGISTER OF LA ROCHE-SUR-YON UNDER NUMBER 491 372 702

Cross-respondent

To:    The Cross-respondent, SPBI, a French simplified joint stock company (“Société par Actions Simplifiée”), registered with the Trade and Companies Register of La Roche-sur-Yon under number 491 372 702

having its registered office at 34 rue Eric Tabarly, Parc d’Activités de l’Eraudière, 85170 Dompierre-sur-Yon, France, represented by its legal representative, duly authorized, BENETEAU, a French public limited company with a board of directors (“Société anonyme à conseil d’administration”) having its registered office at 16 boulevard de la Mer, Les Embruns, 85800 Saint-Gilles-Croix-de-Vie, France, registered with the Trade and Companies Register of La Roche-sur-Yon under number 487 080 194

In accordance with division 10.4 of the Federal Court Rules 2011 (Cth) and/or with leave of the Court, the following documents are to be served on you:

1.    Notice of cross-claim and statement of cross-claim dated 22 August 2025 and accepted for filing by the Federal Court of Australia on 24 August 2025 (together the Cross-claim).

2.    The judgment of Morrell v Sundance Marine Pty Ltd (Substituted Service) [2026] FCA 304 (First Judgment).

3.    The judgment of Morrell v Sundance Marine Pty Ltd (Substituted Service) (No 2) [2026] FCA 1049 (Second Judgment).

4.    Order made by the Honourable Justice Hill on 31 July 2026 (Order).

5.    A certified French translation of the Cross-claim.

6.    A certified French translation of the First Judgment.

7.    A certified French translation of the Second Judgment.

8.    A certified French translation of the Order.

Scope and jurisdiction of the Court

The applicant (David Morrell) claims that a Beneteau First 44 Performance yacht that he purchased from the respondent/cross-claimant (Sundance) contains defects in contravention of sections 54 and 55 of the Australian Consumer Law contained in schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), and that statements made in a brochure contained misleading representations in contravention of section 18 of the ACL.

The cross-respondent (SPBI) is the manufacturer of that yacht, which it supplied to Sundance, which was in turn supplied by Sundance to Morrell in Australia. SPBI published the brochure the subject of complaint.

Sundance pleads in its concise statement in response that the claim for misleading conduct under section 18 of the ACL is apportionable with SPBI under the ACL. By the Cross-claim against SPBI, Sundance pleads that if Morrell establishes that Sundance is liable to him for any loss or damage which he suffered, then SBPI is obliged to provide contribution to Sundance in respect of any liability of Sundance to Morrell. These claims arise under Distribution Agreements entered into between Sundance and SBPI, under the Wrongs Act 1958 (Vic) and section 18 of the ACL.

The Federal Court has jurisdiction, inter alia: (a) in relation to any matter arising under the ACL (section 138 of the ACL, section 19 of the Federal Court of Australia Act 1976 (Cth) and section 39B(1A)(c) of the Judiciary Act 1903 (Cth)); and (b) with respect to provisions in the ACL (other than Part 5-3) that extends to conduct outside Australia by bodies corporate carrying on business within Australia: section 5 of the ACL. The Court has jurisdiction with respect to the claims under the ACL and accrued jurisdiction with respect to the non-ACL claims. Insofar as any conduct of SPBI occurred outside Australia, it was carrying on business within Australia. SPBI is also a “manufacturer” within the meaning of section 7(1)(b) and (c) of the ACL. For these reasons, the Federal Court has jurisdiction in respect of the proceedings against SBPI.

Alleged grounds on which jurisdiction founded

The grounds on which the Federal Court has jurisdiction has been articulated in the preceding section.

Challenge to service of documents and/or jurisdiction of the Court

You have the right to challenge the service of documents and/or challenge the jurisdiction of the Court. You should seek your own legal advice about your rights to do so and how to do so.

Rule 10.43C of the Federal Court Rules 2011 (Cth) provides that unless the Court otherwise orders, a respondent (including a cross-respondent) who has been served outside of Australia must file a notice of address for service before the later of: (a) the first directions hearing; and (b) the 43rd day after the day of service. Pursuant to order 6 of the Order referred to in paragraph numbered 4 above, the Court has ordered that you file a notice of address for service within 43 days after service of the Cross-claim on you.

Date: [#insert] August 2026