Tucker, in the matter of Vector Resources Limited [2021] FCA 112

Tucker, in the matter of Vector Resources Limited [2021] FCA 112

Leave to serve the proposed originating process overseas was granted because the Applicants satisfied r 10.43: the Court had jurisdiction over the proposed Corporations Act and PPSA issues, the proposed proceeding fell within item 14 of r 10.42 as a proceeding about the construction, effect or enforcement of Acts, and the Applicants established a sufficient prima facie case that the Escrow Arrangement was a security interest, that s 440B of the Corporations Act arguably prevented enforcement during administration, and that s 267 of the PPSA arguably vested any unperfected security interest in the Company. The proposed methods of service were also adequately explained in the urgent...

Jurisdiction
Australia
Judgment Date
16 February 2021
Procedural Posture
Application for Leave to Serve an Originating Process Outside Australia Under R 10.43 of the Federal Court Rules 2011 (cth) / Urgent Ex Parte Application
Outcome
Application granted; leave to serve the originating process outside Australia was granted.
Legal Topics
['service of Process Outside the Jurisdiction' 'leave to Serve Originating Application in a Foreign Country' 'prima Facie Case' 'voluntary Administration Moratorium' 'security Interests' 'vesting of Unperfected Security Interests' 'extraterritorial Operation of Corporations Act and Ppsa']
['practice and Procedure' 'corporations' 'corporate Insolvency' 'personal Property Securities'] ['service of Process Outside the Jurisdiction' 'leave to Serve Originating Application in a Foreign Country' 'prima Facie Case' 'voluntary Administration Moratorium' 'security Interests' 'vesting of Unperfected Security Interests' 'extraterritorial Operation of Corporations Act and Ppsa']

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Procedural Posture

Application for Leave to Serve an Originating Process Outside Australia Under R 10.43 of the Federal Court Rules 2011 (cth) / Urgent Ex Parte Application

Legal Issues

  1. 1 ['Whether the Court had jurisdiction in the proposed proceeding for the purposes of r 10.43(4)(a) of the Federal Court Rules 2011 (Cth).' 'Whether the proposed proceeding was of a kind mentioned in r 10.42 of the Federal Court Rules 2011 (Cth).' 'Whether the Applicants had a prima facie case for any of the relief claimed in the proposed proceeding.' 'Whether the Escrow Arrangement was prima facie a security interest under the PPSA and the Corporations Act.' "Whether s 440B of the Corporations Act 2001 (Cth) arguably prohibited enforcement of the Escrow Arrangement during the Company's administration." 'Whether s 267 of the Personal Property Securities Act 2009 (Cth) arguably vested the unperfected security interest in the Company on appointment of administrators.' 'Whether the proposed methods of service in the British Virgin Islands and the Republic of Seychelles satisfied r 10.43(3).']

Ratio Decidendi

Leave to serve the proposed originating process overseas was granted because the Applicants satisfied r 10.43: the Court had jurisdiction over the proposed Corporations Act and PPSA issues, the proposed proceeding fell within item 14 of r 10.42 as a proceeding about the construction, effect or enforcement of Acts, and the Applicants established a sufficient prima facie case that the Escrow Arrangement was a security interest, that s 440B of the Corporations Act arguably prevented enforcement during administration, and that s 267 of the PPSA arguably vested any unperfected security interest in the Company. The proposed methods of service were also adequately explained in the urgent...

Court Disposition

Application granted; leave to serve the originating process outside Australia was granted.

Orders

  • ["Pursuant to r 10.43 of the Federal Court Rules 2011 (Cth), the Applicants are granted leave to serve an originating process in substantially the form annexed as 'JRS-1' to the affidavit of Jonathan Rex Shepherd (sworn 12 February 2021) on Mongbwalu Goldfields Investments Limited (Registered No. 133304), being a...