NSW Caselaw
Reported Decision : [2001] ACL Rep 325 NSW 411
New South Wales Court of Appeal
CITATION : Maamary v Pepsico Australia Pty Ltd & Ors [2001] NSWCA 375 FILE NUMBER(S) : CA 40411/00 HEARING DATE(S) : 31 August 2001 JUDGMENT DATE : 26 October 2001
Joseph Maamary - Appellant PARTIES : Pepsico Australia Pty Ltd - First Respondent Kentucky Fried Chicken Pty Ltd - Second Respondent Simon Konstantinidies (t/as Konstan Laweyrs) - Third Respondent JUDGMENT OF : Mason P at 1; Giles JA at 2; Studdert AJA at 64
LOWER COURT JURISDICTION : District Court LOWER COURT DC 3257/97 FILE NUMBER(S) : LOWER COURT Gibb DCJ JUDICIAL OFFICER :
G Curtin - Appellant COUNSEL : B Hull - First & Second Respondents No appearance - Third Respondent Adams & Co - Appellant SOLICITORS : Malcolm Johns & Co - First & Second Respondents No appearance - Third Respondent CATCHWORDS : PRACTICE AND PROCEDURE - wrong defendant - proceedings struck out - applications to reinstate and substitute correct defendant - application to reinstate wrongly refused on ground could not pay regard to substitution - on application for substitution, whether a mistake in the name of a party - was a mistake - should be substitution - should be reinstatement to allow substitution. D Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 213; Marsland v Andjelic (No 1) (1993) 31 NSWLR 162; CASES CITED: McGee v Yeomans (1977) 1 NSWLR 273; New South Wales Insurance Ministerial Corporation v Anderson (CA, 14 June 1994, unreported); Rodway v The Queen (1990) 169 CLR 575; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262. DECISION : (1) Appeal allowed; (2) Set aside the dismissal by Gibb DCJ of the claims to orders 1 and 2 in the further amended notice of motion heard by her Honour on 11 May 2000; (3) Set aside the order striking out the proceedings made by Garling DCJ on 29 May 1998; (4) Grant leave to amend the statement of claim by substituting Kentucky Fried Chicken Pty Ltd for Pepsico Australia Pty Ltd as defendant; (5) First and second respondents pay the appellant's costs of the appel and to have a certificate under the Suitors Fund Act if qualified.
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