In the matter of RCG CBD Pty Ltd [2016] NSWSC 1938

Supreme Court New South Wales

Medium Neutral Citation: In the matter of RCG CBD Pty Ltd [2016] NSWSC 1938 Hearing dates: Monday, 24 October 2016 Date of orders: 24 October 2016 Decision date: 24 October 2016 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Ninth defendant substituted. Liquidator personally pay costs. Catchwords: CORPORATIONS – winding up – application for substitution of a defendant – present defendant as a result of inquiries made and traces obtained through ATO – whether (NSW) Civil Procedure Act 2005, s 65, applies – clear that liquidator's intention was to sue person who received payment by company – only reason party was sued was mistaken belief that person in receipt of payment was present defendant – whether substitution should be declined as a matter of discretion – no connection between present ninth defendant and substituted party – present ninth defendant repeatedly brought to liquidator's attention its mistake – expiry of 3-year limitation period – no evidence of prejudice – application can be brought outside of 3-year period if shelf order obtained Legislation Cited: (CTH) Corporations Act 2001, s 588GA (NSW) Civil Procedure Act 2005, s 64, s 65 Cases Cited: Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 Category: Procedural and other rulings Parties: Mitchell Warren Ball (first plaintiff) RCG CBD Pty Ltd (second plaintiff) Banq Accountants and Advisors Pty Ltd (first defendant) Wenman Brimak Investments Pty Ltd (second defendant) Statewide Printing Group Pty Ltd (third defendant) Sivasli Pty Ltd (fifth defendant) Harry Patsouris (sixth defendant) Kitto Investments Pty Ltd (seventh defendant) Fox & Staniland Pty Ltd (eighth defendant) Kazzi Investments Pty Ltd (ninth defendant) JRC Kazzi Investments Pty Limited ACN 141 174 745 (proposed ninth defendant) Coolfind Pty Ltd (tenth defendant) Representation: Counsel: A Narayan (plaintiff) M Swanson (second defendant) C Nehme (third defendant) S Jones (solicitor) (sixth defendant) B Campbell (eighth defendant) S Afshar (proposed ninth defendant)