Bredenkamp Liquidator Ultima United Administration (No 2)

Original Word Document (83.3 KB) Federal Court of Australia

Bredenkamp (Liquidator), in the matter of Ultima United Limited (in liq) (No 2) [2026] FCA 471

| File number(s): | WAD 264 of 2025 |

| Judgment of: | BANKS-SMITH J |

| Date of judgment: | 16 April 2026 |

| Date of publication of reasons: | 20 April 2026 |

| Catchwords: | CORPORATIONS – insolvency – overseas service – where company director ordered to produce documents and attend for liquidator's examination – application for leave to serve orders and summons for examination in Hong Kong in accordance with the laws of Hong Kong and the Hague Convention – where orders for substituted service also sought – interaction between rules requiring leave to serve overseas, personal service and substituted service – orders made |

| Legislation: | Corporations Act 2001 (Cth) s 596A

Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG

Federal Court R u les 2011 (Cth) rr 1.34, 10.24, 10.44, 10.49 |

| Cases cited: | Bredenkamp (Liquidator), in the matter of Ultima United Limited (in liq) [2025] FCA 1350

Commissioner of Taxation v Zeitouni [2013] FCA 1011

Connelly (liquidator), in the matter of CIMC Rolling Stock Australia Pty Ltd (in liq) v One Rail Australia (FLA) Pty Ltd (No 3) [2021] FCA 1183

Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173

Nipps (Liquidator), in the matter of Ochre Group Holdings Limited (in liq) [2023] FCA 687

Park v Tschannen [2016] FCA 137 |

| Division: | General Division |

| Registry: | Western Australia |

| National Practice Area: | Commercial and Corporations |

| Sub-area: | Corporations and Corporate Insolvency |

| Number of paragraphs: | 27 |

| Date of hearing: | 16 April 2026 |

| Counsel for the Plaintiff: | Mr N Malone |

| Solicitor for the Plaintiff: | Pragma Legal |

ORDERS

| WAD 264 of 2025 |
| IN THE MATTER OF ULTIMA UNITED LIMITED (IN LIQUIDATION) (ACN 123 920 990) |
| | DANIEL JOHANNES BREDENKAMP AS LIQUIDATOR OF ULTIMA UNITED LIMITED (IN LIQUIDATION) (ACN 123 920 990)

Plaintiff | |

| order made by: | BANKS-SMITH J |
| DATE OF ORDER: | 16 aPRIL 2026 |
THE COURT ORDERS THAT:

1. Pursuant to r 10.44 of the Federal Court Rules 2011 (Cth), the plaintiff has leave to serve the summons for examination issued to Mr Jonathan Cheng (Examination Summons) which directs Mr Cheng to produce documents and attend for examination pursuant to s 596A of the Corporations Act 2001 (Cth), and the following documents on Mr Cheng in Hong Kong in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (Hague Convention) and the laws of Hong Kong:

(a) the orders of Registrar Goucke dated 3 October 2025 and Annexure D to those orders;

(b) the orders of Registrar Goucke dated:

(i) 10 November 2025;

(ii) 5 December 2025;

(iii) 12 January 2026;

(iv) 9 March 2026;

(v) 30 March 2026; and

(c) any further such orders made by this Court to adjourn the examination of Mr Cheng in respect of the production of documents and the examination of Mr Cheng,

(collectively, Documents).

1. Pursuant to r 10.24 and r 10.49 of the Rules, personal service of the Examination Summons is dispensed with and, in lieu of personal service, the Examination Summons and the Documents may be served by taking the following steps:

(a) emailing the Examination Summons and the Documents to the email addresses [redacted] and [redacted]; and

(b) sending the Examination Summons and Documents using the messaging and calling application ‘WhatsApp’ to the mobile number [redacted].

1. To the extent necessary, the Court dispenses under r 1.34 of the Rules with the requirement in r 10.49 of the Rules that service in accordance with a convention, the Hague Convention or the law of Hong Kong must be unsuccessful before the Court substitutes another method of service.

2. The Examination Summons and the Documents are taken to have been served when they are served in accordance with order 2 above.

3. The examination of Mr Cheng, in respect of the production of documents listed at 3.00 pm AWST on 20 April 2026 be adjourned to a date to be fixed by this Court.

4. The examination of Mr Cheng listed at 10.00 am AWST on 5 May 2026 be adjourned to a date to be fixed by this Court.

5. Subject to further order and pursuant to s 37AF and s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), the unredacted form of this order, the affidavit of Oliver John Mavrick sworn 8 April 2026 and the submissions filed in support of the interlocutory application are suppressed and are to be marked as confidential for the purposes of r 2.32(3) of the Rules.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1 The plaintiff, Mr Daniel Bredenkamp, is the liquidator of Ultima United Limited.

2 On 3 October 2025 a registrar of this Court made orders pursuant to s 596A of the Corporations Act 2001 (Cth) providing for the public examination of four directors involved in the examinable affairs of Ultima. On 6 October 2025, summonses for examination were issued requiring each of those directors to attend for examination and produce relevant documents.

3 On 3 November 2025 I made orders granting leave to serve Mr Yew Seng Lo, one of the directors of Ultima, outside of Australia: Bredenkamp (Liquidator), in the matter of Ultima United Limited (in liq) [2025] FCA 1350 (Ultima (No 1)). The documents to be served were the summons to attend for examination pursuant to s 596A of the Corporations Act and associated documents.

4 The liquidator now seeks orders in relation to service of the relevant summons and related orders on a second director, Mr Jonathan Cheng, whose current whereabouts is unknown. On the facts available to the liquidator, Mr Cheng may be located in Australia, Hong Kong, China or Malaysia. Attempts to effect personal service at Mr Cheng's last known residential address in Australia have been unsuccessful.

5 The reasons for the issue of the summonses are sufficiently disclosed in Ultima (No 1) at [5]. Those reasons also address the extra-territoriality of the operation of s 596A of the Corporations Act: at [7]-[9].

Questions that arise

6 The questions that arise on this application are:

(a) should leave be granted under r 10.44 of the Federal Court Rules 2011 (Cth) to serve the summons and related documents on Mr Cheng overseas and in which country?

(b) can the liquidator also seek an order for substituted service under the general rule relating to substituted service (r 10.24) or the rule relating to substituted service upon a failed attempt to otherwise serve overseas (r 10.49)?

(c) can the Court exercise its general power in r 1.34 to waive the requirement in 10.49 that there be an unsuccessful attempt at overseas service before ordering substituted service?

(d) what orders should be made in this case?

Leave to serve overseas

7 Evidence in relation to searches and inquiries undertaken to ascertain the whereabouts of Mr Cheng was adduced by Mr Oliver Mavrick, a solicitor from Pragma Lawyers, the solicitors on the record for the liquidator.

8 On the basis of Mr Mavrick's evidence, I am satisfied that there is some prospect that Mr Cheng resides or is located in Hong Kong. The evidence included a statement from a judgment delivered by the Grand Court of the Cayman Islands and information provided by other directors in late 2025. When Mr Cheng's Australian mobile number is called from an Australian landline, an immediate voice message is received stating words to the effect of:

Hi, this is Jonathan, I'm currently not in Australia if you have any urgent matter please call me on this mobile number country code 852, [redacted].

The country code (+852) is the country code for Hong Kong.

9 The current evidence in relation to links to Malaysia and China was more tenuous, and it is not necessary to address it further.

10 Hong Kong is a party to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (Hague Convention).

11 Based on the official website for the Hague Convention (referred to by Mr Mavrick), Hong Kong requires that a request for service of documents be sent to Hong Kong's Central Authority, being the Chief Secretary for Administration. Service will then be effected by the Chief Bailiff of the Court. The time for execution of a request for service can take around three months.

12 Article 10(a) of the Hague Convention provides that if a state of destination does not object, the Convention shall not interfere with the freedom to send judicial documents by postal channels directly to persons abroad. Hong Kong does not object to art 10(a). However, no postal address for Mr Cheng is known.

13 I consider it is appropriate that leave be granted to serve the relevant documents overseas, in Hong Kong. Consistent with what was said in Ultima (No 1) at [28]:

… Examinations under s 596A of the Corporations Act requiring attendance and the production of books are important and long-standing provisions of Australian insolvency law. A registrar of this Court having already determined that it is appropriate that a summons should issue, I consider it appropriate that the liquidator should have the benefit of such orders to the extent (at least) that there be an order that they be served outside Australia …

14 The examinations have proceeded in relation to other persons and there is no good reason to refuse leave. According to the liquidator, it appears Mr Cheng was 'centrally involved' in the affairs of Ultima. The examination of Mr Cheng is mandatory and has a real and substantial connection to Australia.

Substituted service

15 The authorities establish that an order for substituted service should not be made in relation to a person outside the jurisdiction who has not been the subject of an order for leave to serve outside the jurisdiction: Commissioner of Taxation v Zeitouni [2013] FCA 1011 at 26; Ford, in th e matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173 at [27]-28.

16 These authorities discuss the issue in the context of r 10.43 of the Rules (service of an originating application) rather than r 10.44 (service of any other document), but there is no reason having regard to the text or purpose of these rules to apply a different approach: see also Nipps (Liquidator), in the matter of Ochre Group Holdings Limited (i n liq) [2023] FCA 687 at 10(5).

17 Therefore, as I have determined that leave to serve the documents overseas should be granted, there is no bar on proceeding to consider an application for substituted service.

18 In Ford, O'Bryan J said the following at [29]:

A question that has not been finally resolved is whether r 10.24 can be relied on in respect of substituted service outside of Australia, even in circumstances where leave has been granted under r 10.43, or whether r 10.24 is necessarily inconsistent with Div 10.4 (within the meaning of r 10.45). The matter of substituted service outside Australia is addressed by r 10.49 which permits substituted service if service on the person in a foreign country in accordance with a convention or the relevant foreign law was not successful. This requires that some attempt must first be made to serve in accordance with the relevant convention or foreign law: [Park v Tschannen [2016] FCA 137] at [15]. In contrast, r 10.24 permits substituted service if 'it is not practicable to serve a document on a person in a way required by the Federal Court Rules' and does not require that some attempt first be made to serve in another manner.

19 His Honour then referred (at [32]) to a number of decisions in which the Court had concluded that orders for substituted service outside Australia may be made under r 10.24 where leave to serve out of the jurisdiction had been obtained under r 10.43. His Honour continued:

… I consider it appropriate to follow those decisions. In any event, if r 10.24 were to be considered inapplicable in the circumstances of service outside Australia by reason of inconsistency with r 10.49, the Court would have power to make an order for substituted service under r 10.49 in equivalent circumstances by exercising power under r 1.34 to dispense with the requirement that personal service be attempted before substituted service can be effected: see, for example AIC v Facebook at [66]; Connelly (liquidator), in the matter of CIMC Rolling Stock Australia Pty Ltd (in liq) v One Rail Australia (FLA) Pty Ltd (No 3) [2021] FCA 1183 (Connelly) at [72]-[74] per Downes J. …

20 It is therefore apparent that orders for substituted service may be made under either:

(a) r 10.24 where it is not practicable to serve a document on a person in a way required by the Rules; or

(b) under r 10.49, even when no attempt has been made to effect personal service under an applicable convention or overseas law (as anticipated by a grant of leave), by dispensing with such requirement, exercising the power granted by r 1.34 of the R ules.

21 Circumstances relevant to considering whether to dispense with satisfaction of any requirement for attempted personal service under an applicable convention or overseas law before ordering substituted service include urgency and serious impracticability with personal service (Park v Tschannen [2016] FCA 137 at 18); the subject matter of the proceeding, particularly where it involves commercial matters, the nature of the proceeding's connection to Australia and the difficulties and costs associated with attempting personal service (Ford at [33]); the recognition of methods of modern communications, particularly in the context of commercial proceedings, where 'the vast majority of communication occur electronically by email or similar methods' (Fo rd at [33]); and the likelihood that the method of substituted service will bring the existence of the documents to the attention to the defendant (Ford at [33]).

22 In this case, there is no known physical address for Mr Cheng in Hong Kong. Therefore, the prospect of personal service being effected in Hong Kong under the Hague Convention is doubtful and likely to be difficult and involve delay.

23 The summons ha s been issued at the request of the liquidator of an Australian company and there is a public interest in the liquidation (including examinations) being finalised as soon as possible: Connelly (liquidator), in the matter of CIMC Rolling Stock Australia Pty Ltd (in liq) v One Rail Australia (FLA) Pty Ltd (No 3) [2021] FCA 1183 at 78.

24 The best evidence of a potential means of contact with Mr Cheng relates to certain email addresses and a WhatsApp mobile number. Having regard to Mr Mavrick's affidavit, the evidence indicates that the WhatsApp number was used by Mr Cheng in November 2025 and December 2025. One of the respective email addresses was used by Mr Cheng in July 2023, and emails sent to that address more recently (in October 2025 and November 2025) have not bounced back. There was no notification that the emails had not been delivered. The second email address for Mr Cheng was provided to the liquidator by a former director of Ultima. Both email addresses include the names 'chengjonathan' or 'j.cheng'.

25 There is no guarantee that service by use of the designated email addresses and WhatsApp number will bring the documents to the attention of Mr Cheng but I am satisfied that there is a high prospect that it will do so. I am satisfied that it is appropriate to make orders for substituted service pursuant to r 10.24 and r 10.49 of the Rules as sought in the liquidator's application, by emailing the documents and sending them by use of WhatsApp at the designated addresses/number. I am also satisfied that to the extent necessary, it is appropriate to dispense with the requirement in r 10.49 that service in accordance with the Hague Convention or the laws of Hong Kong must be unsuccessful before an order for substituted service is granted and given effect.

Suppression

26 Disclosure of the information in the affidavit of Mr Mavrick and the submissions filed in support of the application would tend to reveal matters relevant to the recovery strategy and investigations being undertaken by the liquidator in the interests of the Ultima creditors. Revealing such matters would therefore prejudice the proper administration of justice, unless a further order and a particular inspection regime might sensibly be implemented in the future. Accordingly, it is appropriate that the confidentiality of those materials be preserved pending any further order. A suppression order is accordingly made under s 37AF and s 37AG(1)(a) of the Federa l Court of Australia Act 1976 (Cth) in relation to those documents, preserving their confidentiality.

Orders

27 For the above reasons, which address the questions identified at [6] above, orders were made on 16 April 2026.

| I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith. |
Associate:

Dated: 20 April 2026