Horizon Capital Financial S.A. R.L (Numero d'immatriculation B218902) v BCC Trade Credit Pty Ltd [2023] NSWSC 917

Horizon Capital Financial S.A. R.L (Numero d'immatriculation B218902) v BCC Trade Credit Pty Ltd [2023] NSWSC 917

Leave to proceed was granted because the fourth and fifth defendants had been served overseas in accordance with the relevant local laws, the claim fell within Sch 6 of the UCPR as a claim concerning a contract made in Australia, the plaintiff showed an arguable case by pointing to apparent assignments, and New South Wales was not a clearly inappropriate forum given the location of the insurers and the governing law of the policy. The Hong Kong and Singapore insolvency proceedings did not preclude the orders because no steps had been taken under the Cross-Border Insolvency Act 2008 (Cth) to have those foreign proceedings recognised in an Australian court.

Jurisdiction
Australia
Judgment Date
04 August 2023
Procedural Posture
Civil Procedure; Service Outside Australia; Leave to Proceed Against Foreign Corporate Defendants / Notice of Motion Filed on 4 July 2023 Seeking Leave Under Uniform Civil Procedure Rules 2005 (nsw), R 11.8 AA to Proceed Against the Fourth and Fifth Defendants After Service Overseas and No Appearance
Outcome
Leave to proceed under rule 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW) granted.
Legal Topics
['service Outside Australia' 'leave to Proceed' 'foreign Corporate Defendants' 'winding Up Proceedings in Hong Kong and Singapore' 'cross Border Insolvency Recognition' 'trade Credit Insurance Policy Assignment']
['civil Procedure' 'private International Law' 'insolvency' 'insurance'] ['service Outside Australia' 'leave to Proceed' 'foreign Corporate Defendants' 'winding Up Proceedings in Hong Kong and Singapore' 'cross Border Insolvency Recognition' 'trade Credit Insurance Policy Assignment']

Case Brief

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Procedural Posture

Civil Procedure; Service Outside Australia; Leave to Proceed Against Foreign Corporate Defendants / Notice of Motion Filed on 4 July 2023 Seeking Leave Under Uniform Civil Procedure Rules 2005 (nsw), R 11.8 AA to Proceed Against the Fourth and Fifth Defendants After Service Overseas and No Appearance

Legal Issues

  1. 1 ['Whether the fourth and fifth defendants were properly served outside Australia.' 'Whether the claim fell within a category in Sch 6 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the plaintiff had an arguable case sufficient to survive a summary judgment application.' 'Whether New South Wales was a clearly inappropriate forum.' 'Whether Hong Kong and Singapore winding up or provisional liquidation proceedings prevented the Court from granting leave in the absence of recognition under the Cross-Border Insolvency Act 2008 (Cth).']

Ratio Decidendi

Leave to proceed was granted because the fourth and fifth defendants had been served overseas in accordance with the relevant local laws, the claim fell within Sch 6 of the UCPR as a claim concerning a contract made in Australia, the plaintiff showed an arguable case by pointing to apparent assignments, and New South Wales was not a clearly inappropriate forum given the location of the insurers and the governing law of the policy. The Hong Kong and Singapore insolvency proceedings did not preclude the orders because no steps had been taken under the Cross-Border Insolvency Act 2008 (Cth) to have those foreign proceedings recognised in an Australian court.

Court Disposition

Leave to proceed under rule 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW) granted.

Orders

  • ["Orders made in accordance with pars 1 and 2 of the plaintiff's Notice of Motion of 4 July 2023."]