Bindaree Beef Pty Limited v Chinatex (Australia) Pty Ltd & Ors [2018] NSWSC 1499

Bindaree Beef Pty Limited v Chinatex (Australia) Pty Ltd & Ors [2018] NSWSC 1499

Clause 23.1 of the Deed of Company Arrangement contemplated service of judicial process concerning the Deed because the parties were using the statutory DOCA regime and the Deed itself referred to court applications to terminate, void or invalidate it. The Originating Process seeking to void, invalidate or terminate the Deed was a demand under the Deed, and was served by email to the notice details specified for Chinatex and Chudai. That service was therefore in accordance with an agreement, acknowledgment or undertaking binding the parties served and constituted sufficient service under r 10.6(2) of the Uniform Civil Procedure Rules 2005.

Jurisdiction
Australia
Judgment Date
08 October 2018
Procedural Posture
Equity Corporations List Application Concerning Service of Originating Process in Proceedings to Void, Invalidate or Terminate a Deed of Company Arrangement. / Interlocutory Ex Parte Application for Orders That the Third and Fourth Defendants Had Been Validly Served by Agreement Or, Alternatively, That Service by Email Was Effective and Sufficient.
Outcome
Application granted; service on the third and fourth defendants was declared to have been effected by email and to constitute sufficient service of the Originating Process.
Legal Topics
['service by Agreement' 'service Outside Australia' 'deed of Company Arrangement' 'originating Process' 'costs of Interlocutory Process']
['civil Procedure' 'corporations' 'insolvency'] ['service by Agreement' 'service Outside Australia' 'deed of Company Arrangement' 'originating Process' 'costs of Interlocutory Process']

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Procedural Posture

Equity Corporations List Application Concerning Service of Originating Process in Proceedings to Void, Invalidate or Terminate a Deed of Company Arrangement. / Interlocutory Ex Parte Application for Orders That the Third and Fourth Defendants Had Been Validly Served by Agreement Or, Alternatively, That Service by Email Was Effective and Sufficient.

Legal Issues

  1. 1 ['Whether Bindaree was entitled to serve the Originating Process on Chinatex and Chudai outside Australia without leave under r 11.4 and Schedule 6 of the Uniform Civil Procedure Rules 2005.' 'Whether clause 23.1 of the Deed of Company Arrangement was an agreement, acknowledgment or undertaking for service within r 10.6 of the Uniform Civil Procedure Rules 2005.' 'Whether an Originating Process seeking to void, invalidate or terminate the Deed of Company Arrangement was a notice, demand or communication under the Deed.' 'Whether costs of the interlocutory application should be ordered against the third and fourth defendants.']

Ratio Decidendi

Clause 23.1 of the Deed of Company Arrangement contemplated service of judicial process concerning the Deed because the parties were using the statutory DOCA regime and the Deed itself referred to court applications to terminate, void or invalidate it. The Originating Process seeking to void, invalidate or terminate the Deed was a demand under the Deed, and was served by email to the notice details specified for Chinatex and Chudai. That service was therefore in accordance with an agreement, acknowledgment or undertaking binding the parties served and constituted sufficient service under r 10.6(2) of the Uniform Civil Procedure Rules 2005.

Court Disposition

Application granted; service on the third and fourth defendants was declared to have been effected by email and to constitute sufficient service of the Originating Process.

Orders

  • ['Service of these proceedings on the third and fourth defendants was effected by email sent by the solicitor for the plaintiff to MinterEllison on 27 July 2018 at 4:35 pm and constitutes sufficient service of the Originating Process filed 27 July 2018 within the meaning of r 10.6(2) of the Uniform Civil Procedure...