Horizon Capital Fund (Luxembourg Business Registration No. B218924) v Insurance Australia Ltd; Horizon Capital Fund (Luxembourg Business Registration No. B218924) v Tokio Marine & Nichido Fire Insurance Co. Ltd [2023] NSWSC 389

Supreme Court New South Wales

Medium Neutral Citation: Horizon Capital Fund (Luxembourg Business Registration No. B218924) v Insurance Australia Ltd; Horizon Capital Fund (Luxembourg Business Registration No. B218924) v Tokio Marine & Nichido Fire Insurance Co. Ltd [2023] NSWSC 389 Hearing dates: 14 April 2023 Date of orders: 14 April 2023 Decision date: 14 April 2023 Jurisdiction: Equity Before: Darke J Decision: In each matter, leave is granted under UCPR r 11.8AA to proceed against the second defendant. Catchwords: CIVIL PROCEDURE – service outside Australia – applications for leave to proceed against a foreign corporate defendant which has failed to enter an appearance – where the foreign corporate defendant is subject to a creditors' voluntary winding up in Malaysia – whether the foreign corporate defendant has been duly served – whether the leave of the Malaysian court is required to commence proceedings in this Court against the foreign corporate defendant – held that service has been effected in the circumstances referred to in Sch 6 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") – held further that the Malaysian statutory provisions which stay the commencement or carrying on of proceedings upon winding up only operate within the territory of the enacting jurisdiction – leave to proceed granted pursuant to UCPR r 11.8AA Legislation Cited: Companies Act 2016 (Malaysia), ss 451(2), 513(2) Corporations Act 2001 (Cth), ss 471B, 500(2) Cross‑Border Insolvency Act 2008 (Cth) Uniform Civil Procedure Rules 2005 (NSW), rr 11.4(1), 11.7, 11.8, 11.8AA, 11.8AC, Sch 6(b)(ii), Sch 6(h)(i) Cases Cited: Bond Media Ltd v John Fairfax Group Pty Ltd (1988) 14 ACLR 701 Consulere Design & Construction Pty Ltd v Hooker Corporation Ltd [1991] 2 VR 189 Category: Procedural rulings Parties: 2022/250607 Horizon Capital Fund (Luxembourg Business Registration No. B218924) (Plaintiff) Insurance Australia Ltd (First Defendant) Rhodium International Trading Ltd (Malaysian Registration No. LL12068) (in Creditors' Voluntary Liquidation) (Second Defendant) BCC Trade Credit Pty Ltd (Third Defendant)