KerryJ Investment Pty Ltd v Xiamen Fengwei Energy Technology Co Ltd [2013] FCA 141

KerryJ Investment Pty Ltd v Xiamen Fengwei Energy Technology Co Ltd [2013] FCA 141

It was not practicable to effect service on the first respondent in China under the Hague Convention due to long delays, and the Court was satisfied on the affidavit evidence that documents had been brought to the attention of the first respondent through monitored email addresses and attempted postal delivery.

Parties
Applicant/cross Respondent: KerryJ Investment Pty Ltd (ACN 108 633 227); First Respondent/first Cross Claimant: Xiamen Fengwei Energy Technology Co Ltd; Second Respondent/second Cross Claimant: Chiko Solar Industry Co Ltd
Jurisdiction
Australia
Judgment Date
01 March 2013
Procedural Posture
Interlocutory Application / Hearing and Orders on Applications for Deemed Service Under Rule 10.48
Outcome
Orders made granting deemed service of the relevant applications and affidavits on the first respondent under Rule 10.48; timetable set for further steps; costs reserved.
Legal Topics
Service Outside Australia, Deemed Service, Hague Convention, Email Service, Federal Court Rules R 10.48
Practice and Procedure Service Outside Australia Deemed Service Hague Convention Email Service Federal Court Rules R 10.48

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Parties

KerryJ Investment Pty Ltd (ACN 108 633 227)

Applicant/cross Respondent

Xiamen Fengwei Energy Technology Co Ltd

First Respondent/first Cross Claimant

Chiko Solar Industry Co Ltd

Second Respondent/second Cross Claimant

Procedural Posture

Interlocutory Application / Hearing and Orders on Applications for Deemed Service Under Rule 10.48

Legal Issues

  1. 1 Whether service under the Hague Convention is practicable
  2. 2 Whether documents have been brought to the attention of the respondent as required for deemed service under Rule 10.48

Ratio Decidendi

It was not practicable to effect service on the first respondent in China under the Hague Convention due to long delays, and the Court was satisfied on the affidavit evidence that documents had been brought to the attention of the first respondent through monitored email addresses and attempted postal delivery.

Court Disposition

Orders made granting deemed service of the relevant applications and affidavits on the first respondent under Rule 10.48; timetable set for further steps; costs reserved.

Orders

  • The interlocutory application dated 20 November 2012 and the affidavit of Joel Brady Masterson dated 20 November 2012 be taken to have been served on the First Respondent on 20 November 2012 via specified email addresses.
  • The interlocutory application dated 14 February 2013, the amended interlocutory application, and the affidavit of Joel Brady Masterson dated 14 February 2013 be taken to have been served on the First Respondent on 14 February 2013 via specified email addresses and by registered post.