Federal Court of Australia

Albarran, in the matter of Perennial Enterprise Pty Ltd (in liq) (Service Abroad) [2026] FCA 1407

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 10.44 of the Federal Court Rules 2011 (Cth), the plaintiff has leave to serve the following documents on Theodore Young Perry in the United States of America by way of personal service:

(a)    summons for examination addressed to Theodore Young Perry issued pursuant to order 2 of the orders made by Judicial Registrar Birchall on 6 August 2026 (Orders);

(b)    the Orders;

(c)    a copy of these orders; and

(d)    a copy of any Orders by which the date for Theodore Young Perry to produce documents pursuant to the Orders has been adjourned.

2.    The plaintiff's submissions filed on 4 September 2026 be treated as confidential for the purposes of r 2.32(3) of the Rules until further order.

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

REASONS FOR JUDGMENT

YOUNAN J:

Application for leave to serve abroad

1    The plaintiff seeks leave to serve a summons for examination addressed to Theodore Young Perry, and orders made by Registrar Birchall on 6 August 2026 and in respect of Theodore Young Perry, upon him outside of Australia, pursuant to r 10.44 of the Federal Court Rules 2011 (Cth).

2    This application corresponds to the relief sought in prayer 17 of the originating process filed on 29 June 2026, which is made relevantly under s 596B of the Corporations Act 2001 (Cth) and r 30.34 of the Rules. The originating process seeks the issuance of summonses for examination and orders for production (in relation to Theodore Young Perry and other persons) by the liquidator of Perennial Enterprise Pty Ltd (in liquidation) ACN 148 020 697 (Company).

3    The application for service abroad is supported by: (i) the Confidential Affidavit of Richard Albarran sworn on 25 June 2026 (Albarran Affidavit) and Confidential Exhibit RA-1; and (ii) the Affidavit of Thomas Darcy Dickinson sworn on 4 September 2026 (Dickinson Affidavit) and Exhibit TDD-1 (TDD-1).

Reasons for application

4    On 16 September 2022, the plaintiff, Mr Albarran of Hall Chadwick, was appointed as the joint and several liquidator of the Company together with Richard Lawrence (who subsequently retired as a liquidator of the Company), pursuant to orders made by the Supreme Court of Victoria under s 472(1) of the Corporations Act.

5    The subject of the summons, Theodore Young Perry, is an Australian citizen. The plaintiff believes Theodore Young Perry to be the brother of the director of the Company, Shane Young Perry. The evidence on which the plaintiff relies is that Theodore Young Perry: (a) is a unitholder in the Company; (b) has received monies from the Company; and (c) was involved in an entity that has had dealings with the Company which is the subject of the plaintiff’s investigations.

6    On 3 October 2025, in separate proceedings commenced in the Supreme Court of New South Wales, Theodore Young Perry was served at an address in Florida, United States of America. On this basis, the plaintiff believes that Theodore Young Perry resides outside of Australia.

7    On 6 August 2026, Registrar Birchall made an order issuing a summons to Theodore Young Perry pursuant to s 596B of the Corporations Act, and made orders for him to attend Court to produce documents specified in a schedule to those orders, subject to the grant of the relief sought in the present application.

8    The plaintiff intends to examine Theodore Young Perry in respect of his relationship to the Company; monies received by him; his involvement in an entity that has had dealings with the Company; and any potential chose in action against him.

Basis of application

9    The application is to effect service of the Court’s processes abroad by way of personal service. The summons was issued pursuant to s 596B of the Corporations Act, which upon application for the summons, gives the Court a discretion to summon a person for examination about a corporation’s examinable affairs if the Court is satisfied that the person: (i) has taken part or been concerned in examinable affairs of the corporation and has been, or may have been, guilty of misconduct in relation to the corporation; or (ii) may be able to give information about examinable affairs of the corporation.

10    The Court has the power to make the order sought pursuant to r 10.44 of the Rules, which provides that any document other than an originating application may be served outside Australia with the leave of the Court, and with any directions that the Court considers appropriate.

11    Ordinarily, courts exercise caution in making orders for service out of the jurisdiction on persons not otherwise subject to their jurisdiction as impinging on a foreign state’s sovereignty: Krejci in his capacity as liquidator of Myoora Land Pty Ltd (in liq) v Myoora Land Pty Ltd [2023] FCA 620 at [31] per Rares J. While Theodore Young Perry is an Australian citizen, the service of process commanding his attendance before the Court is an assertion of the Court’s authority while he is present in a foreign jurisdiction.

12    Therefore, whether or not the subject of the summons is a resident of Australia, it is necessary to be satisfied that there is a sufficient connection between the person sought to be summoned and the examinable affairs of the corporation: Myoora at [32], citing Waller v Freehills (2009) 177 FCR 507 at [61], which relevantly examined the extraterritorial operation of ss 596A and 596B of the Corporations Act. The sufficiency of that connection is proportionate to the risk of adversely affecting international comity, which risk is recognised and accommodated in the provision of the Court’s discretion in s 596B of the Corporations Act: Waller at [61].

13    In the present case, I am satisfied that that there is a sufficient connection between the person sought to be examined and the subject matter of the proposed examinations, for the purposes of s 596B(1)(b)(i) or (ii) of the Corporations Act, and therefore that the orders sought should be made pursuant to r 10.44 of the Rules, for the following reasons:

(1)    The evidence on which the plaintiff relies, in respect of (some of) which confidentiality is sought, suggests that Theodore Young Perry is involved in the examinable affairs of the Company, as a unitholder and by way of dealings with the Company that are the subject of investigation by the plaintiff.

(2)    By his Australian citizenship, Theodore Young Perry demonstrates a connection to the Court’s jurisdiction, which mitigates any risk of adversely affecting international comity.

(3)    The risk is further mitigated by the absence of any opposition by the United States of America to Article 10 of the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, as recorded in the table of signatories prepared by the Hague Conference on Private International Law, and exhibited in TDD-1.

(4)    While the Dickinson Affidavit attests to personal service as a permissible method of service in Florida, this assertion is not the subject of expert evidence and is made on the basis of section 031 of Chapter 48 of Title VI of the 2026 Florida Statutes, without reference to the application of that legislative provision in the present context. While I do not rely on that evidence, I do not consider that the proposed method of personal service (as distinct from any other method of service) presents any risk of adversely affecting international comity.

Confidentiality

14    The plaintiff seeks an order that written submissions filed on 4 September 2026 in support of the orders sought be treated as confidential for the purposes of r 2.32(3) of the Rules, until further order of the Court. The purpose of the order is to prevent the disclosure of material contained in the Albarran Affidavit, which was filed in support of the application under s 596B of the Corporations Act, and is not available for inspection (except so far as the Court orders) under s 596C(2). In those circumstances, it is appropriate to make the order sought. These reasons reflect the scope of the confidentiality sought.

Conclusion

15    Accordingly, I will grant the leave sought by the plaintiff, and make orders in the terms proposed.

Associate:

Dated:    24 September 2026