Background
The underlying dispute concerns the legal and beneficial ownership of 1,020,048 ordinary shares in Firmus Grid Ltd — an Australian company preparing for an ASX listing with an anticipated market capitalisation of nearly $7 billion — originally issued to Meribel Invest FIR Pty Ltd in August 2022. The plaintiffs (the “Madsen parties”) contend that a purported transfer of those shares to James Madsen in late 2023, allegedly procured by his brother Ben Madsen, was valid; Meribel FIR disputes this and claims the transfer was invalid. The proceedings are listed for a five-day trial before Nixon J commencing 29 June 2026.
Central to the dispute is what, if anything, Firmus Grid’s current senior officers — co-CEOs Oliver Curtis and Tim Rosenfield (resident in Singapore), Deputy CFO Sam Biscoe (Singapore), and General Counsel Ben Webb (New Zealand) — knew about the transfer and the circumstances in which James Madsen came to be registered as shareholder. Ben Madsen’s affidavit evidence referred to conversations with “directors of Firmus” and a meeting with Oliver Curtis or another Firmus employee at which a share transfer form was handed over. Firmus Grid filed a submitting appearance and declined to facilitate voluntary evidence from its officers.
Meribel FIR sought leave to serve subpoenas to give evidence on the three Singapore-based officers under UCPR r 11.8AB (service of non-originating process outside Australia) and on Mr Webb under s 31 of the Trans-Tasman Proceedings Act 2010 (Cth). It also sought orders under UCPR r 10.14(3) deeming email service already effected on 21 May 2026 as valid personal service, and an order under UCPR r 31.2 that all eight Firmus Grid officers (current and former) give oral evidence at trial.
The Court’s Holding
Brereton J granted leave on all grounds. On the Singapore subpoenas under r 11.8AB, his Honour applied the framework from Ceramic Fuel Cells Limited (In Liq) v McGraw-Hill Financial, Inc (2016) 245 FCR 340, holding that international comity is a mandatory consideration requiring care and restraint, but not an absolute bar. The Court found the special circumstances here sufficed: Curtis, Rosenfield, and Biscoe are Australian citizens (not Singaporean nationals), each holds shares in and regularly visits Australia in connection with Firmus Grid’s impending ASX float, the subject matter concerns dealings in the shares of an Australian company, and any contempt sanction could be enforced against assets in Australia without touching Singaporean sovereignty. Significantly, the Court noted that Singapore’s Hague Convention declaration expressly permits direct service on nationals of the originating state, indicating Singapore would not regard such service as an affront. Leave for the New Zealand subpoena was granted under s 31 of the Trans-Tasman Proceedings Act on the basis that Mr Webb’s evidence is potentially important, no alternative means of securing it exist, and any inconvenience can be mitigated by evidence via audio-visual link (AVL).
On deemed service under UCPR r 10.14(3), Brereton J held the rule applies to subpoenas notwithstanding the personal service requirement in r 33.5(1), with r 10.14(4) (deeming an order under r 10.14(3) to constitute personal service) reconciling the two provisions. His Honour distinguished doubts expressed by Barrett J in Nash v Stewart [2010] NSWSC 513, noting subsequent amendments to the rules and emphasising that the ultimate objective of service is procedural fairness through actual notice — of which there was no doubt here, given the officers are senior executives of Firmus Grid whose solicitors had been corresponding about the subpoenas. All four subpoenas issued by email on 21 May 2026 were declared to have been validly served from that date.
Leave on the Singapore subpoenas was granted on the condition that Meribel FIR not oppose any application for evidence to be given by AVL unless it can demonstrate exceptional circumstances — a condition designed to respect Singaporean sovereignty by avoiding compulsion on residents to physically leave that jurisdiction. The same condition applied to Mr Webb. The Madsen parties’ opposition was rejected; the Court noted that the trial schedule had sufficient capacity to accommodate the witnesses, and any risk to the trial timetable could be addressed by the trial judge.
Key Takeaways
- Australian courts may grant leave to serve subpoenas on witnesses abroad, but international comity is a mandatory (not merely discretionary) consideration; the power will ordinarily be exercised only in exceptional circumstances and with care and restraint.
- Citizenship of the originating state is a critical factor: Brereton J expressly stated he would not have granted leave had the Singapore-based recipients been citizens of Singapore or any country other than Australia.
- AVL conditions on cross-border subpoenas offer a practical mechanism for balancing the need for evidence against respect for foreign sovereignty — courts can require the applicant not to oppose AVL applications as a condition of leave.
- UCPR r 10.14(3) can be used to deem email service of a subpoena effective where the recipient demonstrably has actual notice, with r 10.14(4) treating such an order as constituting personal service; the focus is on procedural fairness through notice, not on strict adherence to form.
- Singapore’s Hague Convention declaration — permitting direct service on nationals of the originating state — was treated as evidence of Singapore’s attitude and weighed in favour of granting leave.
Why It Matters
This decision provides significant practical guidance for litigants in Australian courts who need evidence from witnesses located offshore, particularly in jurisdictions such as Singapore with which Australia has no bilateral judicial assistance treaty covering subpoenas. By articulating the factors that can justify leave — Australian citizenship of the recipient, Australian nexus of the subject matter, enforceability of sanctions against Australian assets, and the availability of AVL to minimise territorial intrusion — Brereton J gives practitioners a clearer roadmap than previously existed for this procedurally complex area.
The ruling also resolves lingering uncertainty about whether r 10.14(3) of the UCPR can be used to validate non-personal service of subpoenas, confirming that it can where actual notice is established, and implicitly endorsing the purposive approach to service rules adopted in Commissioner of the Australian Federal Police v Xin (No 2) [2024] NSWSC 1606. At a broader level, with Australian companies increasingly holding international executive talent offshore, the decision signals that senior officers who retain Australian citizenship and Australian-linked assets cannot easily place themselves beyond the reach of NSW court process simply by residing abroad.