Background
David Morrell sued Sundance Marine Pty Ltd over alleged defects in a Beneteau First 44 Performance yacht and alleged misleading representations in a brochure. Sundance cross-claimed against SPBI, a French company associated with Beneteau, seeking contribution if Sundance were found liable to Morrell.
Sundance had sought to serve the cross-claim in France through the Hague Service Convention. Its earlier application for substituted service was refused in March 2026, when the Convention process had been underway for about five months and there was no evidence it could not be completed. By July, however, service had remained unresolved for about nine months despite repeated follow-ups with the French Central Authority.
The Court’s Holding
Justice Hill granted Sundance leave for substituted service outside Australia. The Court held that Convention service had become “not practicable” under r 10.24 of the Federal Court Rules 2011 (Cth), given the further delay and continuing uncertainty over whether and when French local authorities would complete service.
The Court required more than email service. Sundance must send the cross-claim and certified French translations to Beneteau’s general counsel by email and provide a download link, and must also have a French commissaire de justice deliver the documents under French domestic law. It must provide English and French copies of the relevant judgments and orders, and a notice explaining the basis on which the Federal Court asserts jurisdiction. The cross-respondent has 43 days after completed service to file an address for service.
Key Takeaways
- A lengthy and uncertain Hague Convention process can make ordinary overseas service “not practicable” for the purposes of substituted service.
- The assessment balances international comity and personal service against efficient conduct of the proceeding.
- Where email service is permitted, the Court may require additional service under the foreign country’s domestic law and translated documents to ensure effective notice.
Why It Matters
The decision shows that parties cannot obtain substituted service merely because Hague Convention service is slow. But prolonged delay, coupled with no clear prospect of completion despite reasonable follow-up, can shift the balance in favour of an alternative method.
For cross-border commercial disputes, the case also illustrates a practical approach to procedural fairness: use a reliable corporate email contact, comply as far as possible with local service methods, and provide certified translations and jurisdictional information.