Metropolitan Oils Pty Ltd & Ors v Beringer, C.R. & Ors [1986] FCA 139

Metropolitan Oils Pty Ltd & Ors v Beringer, C.R. & Ors [1986] FCA 139

There was a misnomer in the naming of the second applicant; the entity always intended and described in the statement of claim was Leader Oils (W.A.) Pty. Ltd. Accordingly, the amendment is allowed to correct the mis-description.

Parties
First Applicant: Metropolitan Oils (Proprietary) Limited; Second Applicant: Leader Oils Pty. Ltd.; Third Applicant: Forte Lubricants Pty. Ltd.; First Respondent: Clive Robin Beringer; Second Respondent: Fortron Industrial Lubricants Pty. Ltd.; Second Respondent: Fortron Automotive Treatments Pty. Ltd.; Second Respondent: Fortron Automotive Warranties Pty. Ltd.
Jurisdiction
Australia
Judgment Date
08 April 1986
Procedural Posture
Application to Amend Name of Party / Interlocutory Motion
Outcome
Application granted
Legal Topics
Amendment of Parties, Misnomer, Limitations and Amendments
Civil Procedure Amendment of Parties Misnomer Limitations and Amendments

Case Brief

Summary, issues, holding and outcome

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Parties

Metropolitan Oils (Proprietary) Limited

First Applicant

Leader Oils Pty. Ltd.

Second Applicant

Forte Lubricants Pty. Ltd.

Third Applicant

Clive Robin Beringer

First Respondent

Fortron Industrial Lubricants Pty. Ltd.

Second Respondent

Fortron Automotive Treatments Pty. Ltd.

Second Respondent

Fortron Automotive Warranties Pty. Ltd.

Second Respondent

Procedural Posture

Application to Amend Name of Party / Interlocutory Motion

Legal Issues

  1. 1 Whether the name of the second applicant may be amended despite expiration of the limitation period
  2. 2 Whether the misnaming amounted to a mis-description or misnomer rather than addition of a new party

Ratio Decidendi

There was a misnomer in the naming of the second applicant; the entity always intended and described in the statement of claim was Leader Oils (W.A.) Pty. Ltd. Accordingly, the amendment is allowed to correct the mis-description.

Court Disposition

Application granted

Orders

  • The name of the second applicant be amended to Leader Oils (W.A.) Pty. Ltd.
  • The applicants pay the respondents' costs of the motion to amend the name of the second applicant and pay any costs thrown away by the respondents by reason of the amendment.