Federal Court of Australia
Barnden (Trustee) v Ross, in the matter of Chami (Bankrupt) (substituted service) [2026] FCA 1633
File number(s): | NSD 729 of 2024 |
Judgment of: | CHEESEMAN J |
Date of judgment: | 29 October 2026 |
Catchwords: | PRACTICE AND PROCEDURE – substituted service on corporate respondent – no point of principle – attempts at registered office unsuccessful – director said to reside overseas – caveat identifies solicitor and provides solicitor’s office as address for service – extension of time to file statement of claim. Held: substituted service orders made – time for filing statement of claim extended. |
Legislation: | Federal Court Rules 2011 (Cth) r 10.24 |
Division: | General Division |
Registry: | New South Wales |
National Practice Area: | Commercial and Corporations |
Sub-area: | General and Personal Insolvency |
Number of paragraphs: | 6 |
Date of hearing: | 29 October 2026 |
Solicitor for the Applicants: | Chamberlains Law Firm |
ORDERS
NSD 729 of 2024 | ||
IN THE MATTER OF THE BANKRUPT ESTATE OF SARAB CHAMI IN THE MATTER OF THE BANKRUPT ESTATE OF RAYMOND ROSS | ||
BETWEEN: | ANDREW BARNDEN IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF SARAB CHAMI First Applicant ANDREW BARNDEN IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF RAYMOND ROSS Second Applicant | |
AND: | CHRISTOPHER ROSS First Respondent JOAN MARSHALL Second Respondent MARNYA IDLABI (and others named in the Schedule) Third Respondent | |
order made by: | CHEESEMAN J |
DATE OF ORDER: | 29 OCTOBER 2026 |
THE COURT ORDERS THAT:
1. The time to file the statement of claim provided for in Order 1 of the orders made on 25 March 2026 be extended to 30 October 2026.
2. Pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), service of all documents in these proceedings on the fifth respondent, MAAD RETAIL PTY LTD, including the documents referred to in the orders made on 25 March 2026, be effected by handing any such document to Duncan Richard Scott, solicitor.
3. A copy of these orders and the reasons for judgment be included in the tranche of documents served in accordance with Order 2.
4. Service on the fifth respondent is taken to have occurred seven days after any such document is handed to Mr Scott in accordance with Order 2.
5. The proceeding be listed for a case management hearing on 18 February 2027.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHEESEMAN J:
1 I made orders earlier today in relation to an interim application lodged for filing on 22 October 2026 by which the applicants sought orders under r 10.24 of the Federal Court Rules 2011 (Cth) for substituted service of all documents in this proceeding on Maad Retail Pty Ltd, the fifth respondent. The applicants sought orders permitting service by handing the documents to Duncan Richard Scott, solicitor, with service to be taken to have occurred seven days later. I made orders substantially in the form sought. These are my reasons for doing so.
2 The application was supported by an affidavit of Michael Lalji, the solicitor acting for the applicants, sworn on 22 October 2026. The evidence is that the applicants have been unable following exhaustion of reasonable and practical steps to serve Maad Retail in the usual manner under s 109X of the Corporations Act 2001 (Cth). The steps taken to date were detailed in Mr Lalji’s affidavit and supported by the documents annexed thereto.
3 Maad Retail has lodged a caveat against the title to the property that is the subject of the claims in this proceeding. The caveat identifies the company as the caveator and claims an interest as mortgagee under a mortgage dated 10 May 2018. The caveat records the company’s address as Level 5, 67-69 Phillip Street, Parramatta. The company search records that address as a former registered office between 29 January 2016 and 21 May 2018. In that caveat Mr Scott is identified as the lodging party and gives his office as the address for service of notices on the company. Mr Scott also made the statutory declaration on the caveat in the capacity of solicitor for the caveator. A search undertaken by Mr Lalji on 22 October 2026 records Mr Scott as the principal of a law practice in Crows Nest, New South Wales.
4 For the purpose of r 10.24, I am satisfied that personal service on the company is not practicable. The company’s recorded registered office has not provided an effective means of service, the process server’s attempts at that address were unsuccessful, and the applicants’ enquiries suggest that the company’s only director is said to have lived outside Australia for many years.
5 I am also satisfied that handing the documents to Mr Scott is now the most appropriate means of the documents being reasonably likely to come to the company’s attention. I will therefore make the substituted service orders sought in the interim application. A copy of these orders and reasons for judgment should also be served on Mr Scott, at the same time as the other documents identified by the applicants.
6 The applicants also seek an extension to 30 October 2026 of the time fixed by the orders made on 25 March 2026 for filing the statement of claim. Mr Lalji states that the statement of claim was not finalised and served by 17 April 2026 because of an oversight. The extension sought is short, and nothing in the materials suggests that it would cause prejudice to any respondent. I will therefore extend to 30 October 2026 the time for filing the statement of claim provided for in Order 1 of the orders made on 25 March 2026.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman. |
Associate:
Dated: 29 October 2026
SCHEDULE OF PARTIES
NSD 729 of 2024 | |
Respondents | |
Fourth Respondent: | MCJM HOLDINGS PTY LTD |
Fifth Respondent: | MAAD RETAIL PTY LTD |
