In the matter of Sunnya Pty Ltd [2024] NSWSC 988

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Sunnya Pty Ltd [2024] NSWSC 988 Hearing dates: 31 July 2024 Date of orders: 31 July 2024 Decision date: 31 July 2024 Jurisdiction: Equity - Corporations List Before: Black J Decision: Grant the Plaintiffs leave under UCPR r 11.8AA to proceed against the respondent to a contempt application. Catchwords: PRACTICE AND PROCEDURE – service outside the jurisdiction – whether leave should be granted to proceed against the respondent who has not entered an appearance. Legislation Cited: Uniform Civil Procedure Rules, 10.21, 11.5, 11.7, 11.8AA Cases Cited: - Ainsworth v Redd (1990) 19 NSWLR 78 - Australia and New Zealand Banking Group Ltd v Rostkier (unreported), 2 June 1991 - Lawindi v Elkateb [2001] 187 ALR 479; [2001] FCA 1527 - Primelife Corporation Ltd v Newpark Pty Ltd [2003] VSC 106 Category: Procedural rulings Parties: Sunnya Pty Ltd (First Plaintiff/Applicant) Jatcorp Ltd (Second Plaintiff/Applicant) Yi (Easter) Wu (Respondent) Representation: Counsel: B Mostafa (First and Second Plaintiffs/Applicants) No appearance for the Respondent

Solicitors: Auyeung Hencent & Day Lawyers) (First and Second Plaintiffs/Applicants) No appearance for the Respondent File Number(s): 2022/329426 (028)

Judgment – ex tempore (Revised 2 August 2024)

Nature of the application and applicable rules 1. By Notice of Motion filed on 8 December 2023 in these proceedings, the Plaintiffs, Sunnya Pty Ltd and Jatcorp Ltd sought, inter alia, an order that Mr Ye Wu be found guilty of contempt as charged in a Statement of Charge, and that he be punished with contempt as charged in that Statement of Charge. Subsequent steps have been taken to serve Mr Wu with documents related to the contempt application, to which I refer below. By Notice of Motion dated 18 July 2024, the Plaintiffs now seek an order under r 11.8AA of the Uniform Civil Procedure Rules ("UCPR") granting them leave to proceed against Mr Wu in relation to the proceeding for contempt commenced by their Notice of Motion. 2. I will first refer to the applicable rules, before turning to the evidence led in the application for leave, and to the submissions made by Mr Mostafa who appears for the Plaintiffs in the application. Relevantly, r 10.21(1) of the UCPR deals with the circumstances in which personal service may be effected and provides that: "Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person's presence and telling the person the nature of the document." 1. Rule 11.7 deals with the position in respect of service of a notice in an approved form, where a person is to be served with an Originating Process outside Australia, which must specify three matters. Here, such a notice was contained in the documents provided to Mr Wu, although a question arises as to whether that notice was served, or personally served, upon him. 2. Rule 11.8AA, which provides for the leave that is ultimately sought by the Plaintiffs in the application, indicates that: "If an Originating Process is served on a person outside Australia and the person does not enter an appearance, the party serving the document may not proceed against the person served, except by leave of the Court." Plainly, that rule contemplates that the Originating Process will be served on a person outside Australia, and the Plaintiffs here seek to establish that service upon Mr Wu has been effected.