Kellow, in the matter of Advanced Building & Construction Limited (in liq) v Advanced Building & Construction Limited (in liq) [2022] FCA 219

Kellow, in the matter of Advanced Building & Construction Limited (in liq) v Advanced Building & Construction Limited (in liq) [2022] FCA 219

Given that the respondent company is in liquidation and its registered office care of the applicants, requiring compliance with personal service rules would serve no useful purpose. It is appropriate and efficient to order substituted service on the directors and known creditors and to direct publication in suitable newspapers to ensure notice. Further, serving the Article 21 interlocutory process at the same time as the originating process is justified by efficiency and lack of prejudice to interested parties.

Parties
First Applicant: Jessica Jane Kellow in their capacity as liquidators of Advanced Building & Construction Limited (in liquidation) NZBN 9429046385574; Second Applicant: Iain Bruce Shephard in their capacity as liquidators of Advanced Building & Construction Limited (in liquidation) NZBN 9429046385574; Respondent: Advanced Building & Construction Limited (in liquidation) NZBN 9429046385574
Jurisdiction
Australia
Judgment Date
22 February 2022
Procedural Posture
Application for Orders Regarding Recognition of Foreign Insolvency Proceedings and Procedural Matters / Interlocutory Application Determination
Outcome
Orders granted as sought for substituted service, publication and service of interlocutory process; costs reserved.
Legal Topics
Service of Process, Recognition of Foreign Proceedings, Director Examination, Publication of Proceedings, Relief Under Model Law
Cross Border Insolvency Corporate Insolvency Practice and Procedure Service of Process Recognition of Foreign Proceedings Director Examination Publication of Proceedings Relief Under Model Law

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Parties

Jessica Jane Kellow in their capacity as liquidators of Advanced Building & Construction Limited (in liquidation) NZBN 9429046385574

First Applicant

Iain Bruce Shephard in their capacity as liquidators of Advanced Building & Construction Limited (in liquidation) NZBN 9429046385574

Second Applicant

Advanced Building & Construction Limited (in liquidation) NZBN 9429046385574

Respondent

Procedural Posture

Application for Orders Regarding Recognition of Foreign Insolvency Proceedings and Procedural Matters / Interlocutory Application Determination

Legal Issues

  1. 1 Whether personal service of originating process on respondent company should be dispensed with under r 2.7(1) of the Federal Court (Corporations) Rules 2000 (Cth)
  2. 2 Whether orders for substituted service on directors and creditors are appropriate
  3. 3 Whether notices should be published in Dominion Post and New Zealand Herald

Ratio Decidendi

Given that the respondent company is in liquidation and its registered office care of the applicants, requiring compliance with personal service rules would serve no useful purpose. It is appropriate and efficient to order substituted service on the directors and known creditors and to direct publication in suitable newspapers to ensure notice. Further, serving the Article 21 interlocutory process at the same time as the originating process is justified by efficiency and lack of prejudice to interested parties.

Court Disposition

Orders granted as sought for substituted service, publication and service of interlocutory process; costs reserved.

Orders

  • Court documents (originating process, affidavit of Iain Bruce Shephard, Article 21 interlocutory process) to be served by ordinary pre-paid post or email on listed creditors and the respondent's directors at specified postal and email addresses.
  • Applicants to publish notice of filing in the Dominion Post and New Zealand Herald within five business days.