Bredenkamp (Liquidator), in the matter of Ultima United Limited (in liq) (No 2) [2026] FCA 471

This Federal Court decision was a procedural insolvency ruling about service of documents, not a final determination of the underlying investigation into Ultima United Limited. The liquidator needed to serve an examination summons and related court orders on a director, Mr Jonathan Cheng, whose exact location was uncertain but who was thought to be in Hong Kong.

The Court granted leave to serve the documents in Hong Kong and also allowed substituted service by email and WhatsApp. It further dispensed, to the extent necessary, with any requirement that Hague Convention or Hong Kong-law service first be attempted unsuccessfully before substituted service could be used. The ruling is a practical example of how Australian insolvency processes can continue where a director is offshore and difficult to locate.

Daniel Bredenkamp was the liquidator of Ultima United Limited. Earlier, on 3 October 2025, a registrar of the Federal Court had made orders under s 596A of the Corporations Act for the public examination of four directors involved in Ultima's examinable affairs. On 6 October 2025, summonses for examination were issued requiring each of those directors to attend for examination and produce relevant documents.

This later application concerned a second director, Mr Jonathan Cheng. The liquidator had already obtained overseas service orders in relation to another director in an earlier decision. For Mr Cheng, the immediate problem was more difficult. His current whereabouts were unknown. On the material before the Court, he might have been in Australia, Hong Kong, China or Malaysia. Attempts to personally serve him at his last known residential address in Australia had failed.

The liquidator put on evidence from his solicitor about searches and inquiries undertaken to locate Mr Cheng. The Court said the strongest evidence pointed to Hong Kong. That evidence included a statement from a Cayman Islands judgment, information from other directors in late 2025, and a voice message received when Mr Cheng's Australian mobile number was called from an Australian landline. The message said words to the effect that he was not in Australia and gave a mobile number with the +852 country code, which is Hong Kong.

Even with that lead, there was still no known physical address for Mr Cheng in Hong Kong. That mattered because Hong Kong is part of the Hague Convention service system. The evidence before the Court was that a request for service would need to go through Hong Kong's Central Authority and then be effected by the Chief Bailiff of the Court, and that execution of a request could take around three months. Hong Kong did not object to postal channels under art 10(a), but there was no postal address available for Mr Cheng.

The Court identified four questions. First, should leave be granted under the Federal Court Rules to serve the summons and related documents overseas, and if so, in which country? Second, once leave for overseas service was in place, could the liquidator also seek substituted service under the general substituted service rule or the rule dealing with substituted service after failed overseas service?

Third, could the Court use its general dispensing power to waive the requirement in the overseas substituted service rule that service under the Hague Convention or foreign law first be attempted unsuccessfully? Fourth, what orders should be made on the facts of this case?

The legal setting mattered. The summons had been issued under s 596A of the Corporations Act, which the Court described, by reference to the earlier Ultima decision, as part of important and long-standing Australian insolvency law. The Court also noted that the examination of Mr Cheng was mandatory and had a real and substantial connection to Australia because it arose from the liquidation of an Australian company.

So the issue was not whether the Court had some abstract interest in an overseas person. The issue was how to make an existing Australian insolvency examination process work in practice where the director was likely overseas, no street address was known, and the best available contact methods were digital.

The Court granted leave to serve the examination summons and related documents on Mr Cheng in Hong Kong in accordance with the Hague Convention and the laws of Hong Kong. Banks-Smith J was satisfied there was some prospect that Mr Cheng resided or was located in Hong Kong. The evidence linking him to Malaysia and China was described as more tenuous, so the Court did not need to deal with those possibilities further.

The Court also said there was no good reason to refuse leave. The examinations had already proceeded in relation to other persons. The Court accepted that Mr Cheng appeared to have been centrally involved in Ultima's affairs, and that the examination had a real and substantial connection to Australia.

After granting leave for overseas service, the Court turned to substituted service. It accepted that there was no bar to considering substituted service once leave to serve overseas had been granted. The judgment discussed earlier authorities about the interaction between the general substituted service rule, the overseas service rules and the rule dealing with substituted service after failed overseas service.

The Court concluded that substituted service outside Australia could be ordered in either of two ways. First, under the general rule where it is not practicable to serve a document in the way otherwise required by the Rules. Second, under the overseas substituted service rule, even where no attempt had yet been made to effect personal service under the Hague Convention or foreign law, if the Court used its general power to dispense with that requirement.

The Court then explained why it was appropriate to dispense with any need for a prior failed Hague Convention attempt here. The judgment referred to factors such as urgency, serious impracticability of personal service, the commercial subject matter of the proceeding, the proceeding's connection to Australia, the difficulties and costs of attempting personal service, the modern reality that most communications occur electronically, and the likelihood that the proposed substituted service method would actually bring the documents to the person's attention.

Applying those factors, the Court found that there was no known physical address for Mr Cheng in Hong Kong. That made the prospect of personal service there doubtful, difficult and likely to involve delay. The Court also accepted that there was a public interest in the liquidation, including examinations, being finalised as soon as possible. On the evidence, the best means of contact were certain email addresses and a WhatsApp number. The WhatsApp number had been used by Mr Cheng in November and December 2025. One email address had been used by him in July 2023, and more recent emails sent to that address in October and November 2025 had not bounced back. A second email address had been provided by a former director of Ultima. Both addresses included forms of Mr Cheng's name.

The Court accepted there was no guarantee that email and WhatsApp would bring the documents to Mr Cheng's attention, but it was satisfied there was a high prospect that they would. It therefore dispensed with personal service and ordered that the summons and related documents could be served by emailing them to two specified email addresses and sending them by WhatsApp to a specified mobile number. The documents were taken to have been served when those steps were completed.

The Court also adjourned the examination dates that had been listed for 20 April 2026 and 5 May 2026 to dates to be fixed. In addition, it made suppression orders over the unredacted form of the order, a supporting affidavit and the submissions filed in support of the application because disclosure could reveal matters relevant to the liquidator's recovery strategy and investigations and thereby prejudice the proper administration of justice.

For business owners, directors and founders, the main practical point is that Australian corporate and insolvency processes can still operate effectively across borders. If your company is Australian and enters liquidation, a director being overseas does not necessarily stop a liquidator from obtaining examination orders or serving the documents needed to enforce them.

This case is especially relevant for businesses that operate with cross-border management teams. Many startups and growing companies have directors who travel frequently, live overseas, or use a mix of personal and business communication channels. The Court recognised that modern commercial communication often happens electronically and was willing to use email and WhatsApp where the evidence showed those channels were likely to work.

That does not mean any email address or phone number will do. The Court still looked carefully at the evidence. It wanted a real basis for thinking Hong Kong was the right country, a real Australian connection to the examination, practical reasons why formal personal service would be doubtful or delayed, and evidence that the nominated email addresses and WhatsApp number were likely to bring the documents to Mr Cheng's attention.

Businesses should also pay attention to the confidentiality aspect of the decision. The Court suppressed some materials because publication could prejudice the liquidator's recovery strategy and investigations. In practice, that means not every detail of an insolvency investigation will be visible publicly, particularly where disclosure could interfere with asset recovery or related inquiries.

The judgment is a useful reminder that service disputes often turn on ordinary business conduct. Here, the Court relied on practical indicators: a mobile voice message, recent use of a WhatsApp number, prior use of an email address, and the fact that recent emails had not bounced back. Those details can become important evidence when a court asks whether a proposed service method is likely to bring documents to a person's attention.

For companies, that means governance hygiene matters. If directors use personal inboxes, overseas numbers or messaging apps for company business, those channels may later become central to formal legal steps. Businesses should have clear internal practices for storing important communications and updating director details, especially where directors are based in multiple countries.

For directors, the case is a warning against assuming that distance or informality creates protection. If a court is satisfied that a digital channel is genuinely linked to you and likely to reach you, that may be enough for substituted service. Once service is effective, deadlines and obligations can follow even if you would have preferred service to occur in some other way.

For liquidators and advisers, the decision shows the value of assembling detailed evidence about location, contact methods, likely delay under formal overseas service channels, and the commercial need to progress the administration efficiently.

The orders were made on 16 April 2026 and the reasons were published on 20 April 2026. The Court adjourned the examination dates that had been listed for 20 April 2026 and 5 May 2026 to dates to be fixed.

The judgment is a procedural authority on overseas service, substituted service and suppression orders in the context of a liquidator's examination summons. It should be read together with the earlier 2025 Ultima decision if you need the fuller background to the examination process itself.

Does the Court always need a confirmed overseas address before making orders? No. In this case, the Court granted leave to serve in Hong Kong because there was some prospect Mr Cheng was there, even though no physical address in Hong Kong was known.

Why did the Court not insist on waiting for Hague Convention service to fail first? Because the Court considered the lack of a known physical address, the likely delay, the public interest in progressing the liquidation, and the high prospect that email and WhatsApp would bring the documents to Mr Cheng's attention.

Is this only relevant to large insolvencies? No. The practical principles are relevant to any Australian business with offshore directors or decision-makers. The more your business relies on digital communication, the more likely those channels may matter in later disputes or insolvency processes.

What should a director do if they receive documents this way? Take them seriously and get legal advice quickly. A substituted service order can make service effective even if the documents were not delivered by traditional personal service.

This page is based on the Federal Court of Australia judgment in Bredenkamp (Liquidator), in the matter of Ultima United Limited (in liq) (No 2) [2026] FCA 471. The reasons focus on leave to serve overseas, substituted service and suppression orders.

The judgment refers back to an earlier 2025 Ultima decision for the reasons the examination summonses were issued and for discussion of the extra-territorial operation of s 596A. As a result, this decision does not contain the full underlying insolvency narrative.