Unconventional service sidesteps Hague process

The Federal Court of Australia has approved service by email and WhatsApp on a former company director believed to be in Hong Kong, handing insolvency practitioners a practical precedent for pursuing offshore examination targets who cannot be personally located.

The decision was rendered in the liquidation of Australian property development company Ultima United Limited (ASX: UUL). Daniel Bredenkamp of Pitcher Partners was appointed liquidator in April 2023 after the company ceased paying its debts. \

The liquidator launched an investigation into the circumstances surrounding the company’s 2021 capital raise, issues surrounding the company’s deposit account, and the accuracy of the company's share register. He obtained orders requiring the public examination of four directors involved in the company’s examinable affairs under section 596A of the Corporations Act 2001 (Cth). Summonses were issued compelling attendance and production of documents.

This application concerned former director Jonathan Cheng, whose whereabouts were uncertain by the time the examination orders were made. According to the liquidator, Cheng may have been in Australia, Hong Kong, China or Malaysia. The liquidator first attempted conventional personal service at Cheng’s last known residential address in Australia, but those efforts were unsuccessful. Further inquiries included reviewing information from other directors, material from related Cayman Islands proceedings, and a recorded message on Cheng’s Australian mobile number stating he was overseas and providing a Hong Kong contact number. With no confirmed physical address available and formal overseas service likely to be slow and impractical, the liquidator sought orders permitting service by email and WhatsApp.

Based on the foregoing evidence, the Court accepted there was a real prospect Cheng was in Hong Kong, which was sufficient for the Court to grant leave for overseas service in Hong Kong under rule 10.44 of the Federal Court Rules 2011 (Cth).

Hong Kong is covered by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. But the evidence showed formal service through Hong Kong’s Central Authority could take around three months, and no physical address for Cheng was known. That made conventional service doubtful, expensive and slow.

Justice Banks-Smith held the summons and related documents could instead be served by emailing two known email addresses and sending the documents through WhatsApp to Cheng’s mobile number. The judge found there was a high prospect those methods would bring the documents to Cheng’s attention. Evidence included recent use of the WhatsApp number in late 2025, plus email accounts linked to Cheng’s name that remained active and had not bounced back.

Ordinarily, substituted service outside Australia may require failed attempts under the relevant convention or foreign law first. Here, the court used rule 1.34 to dispense with that requirement, citing urgency, serious impracticability, the public interest in efficient liquidation administration, the costs and delay of formal service, and the modern reality that commercial communication often occurs electronically. That reasoning gives practitioners a useful procedural pathway in future cross-border matters, demonstrating that Australian courts are prepared to adapt procedural rules to commercial reality as directors and records increasingly sit across multiple jurisdictions.

Read the decision here.

Nick Malone of Pragma Legal represented the liquidator.