Austin Australia Pty Ltd (in liquidation) & Ors v A & G Scaffolding & Rigging Service Pty Ltd & Ors [2007] NSWSC 1077

Reported Decision : (2007) 25 ACLC 1,363

New South Wales Supreme Court

CITATION : Austin Australia Pty Ltd (in liquidation) & Ors v A & G Scaffolding & Rigging Service Pty Ltd & Ors [2007] NSWSC 1077

HEARING DATE(S) : 06/06/07

JUDGMENT DATE : 28 September 2007

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : White J

DECISION : 1. Give leave under s 64(1)(b) of the Civil Procedure Act to amend the originating process pursuant to s 65(2)(b) of that Act in accordance with the amended originating process which is annexure "A" to the interlocutory process filed on 19 March 2007 2. The costs of the interlocutory process filed on 19 March 2007 will be the plaintiffs' costs in the proceedings against the twenty-seventh defendant.

CORPORATIONS – s 588FF(3)(a) of the Corporations Act 2001 (Cth) considered – Leave to amend to correct mistake in name of party sought outside period stipulated in s 588FF(3)(a) – Whether incorrect naming of defendant in originating process a 'mere misnomer' so that application under s 588FF(1) deemed to have been made as against that party from date on which originating process filed – Consideration of what constitutes a 'mere misnomer' – Held that mistake in name of party a mere misnomer so that application deemed to have been made within time stipulated by s 588FF(3)(a). CATCHWORDS : PRACTICE AND PROCEDURE – Supreme Court procedure – New South Wales –Amendment – Amendment to correct a mistake in the name of a party under ss 64 and 65 of Civil Procedure Act 2005 (NSW) – Where application made within time and Civil Procedure Act applicable pursuant to s 79 of the Judiciary Act 1903 (Cth) – Leave to amend granted.

Civil Procedure Act 2005 (NSW) LEGISLATION CITED : Corporations Act 2001 (Cth) Judiciary Act 1903 (Cth) Supreme Court (Corporations) Rules 1999 (NSW