Suzlon Energy Ltd v Bangad (Application of Credit Suisse Group SA) [2011] FCA 921

Suzlon Energy Ltd v Bangad (Application of Credit Suisse Group SA) [2011] FCA 921

Credit Suisse Group SA was named by misnomer, not misjoinder, because the Suzlon parties intended to sue the legal person conducting the pleaded Credit Suisse private banking business and mistakenly identified that person as Credit Suisse Group SA. O 13 r 2(4) permitted substitution of Credit Suisse AG, the entity answering that description, and O 13 r 2(5) gave the substitution effect from commencement. Credit Suisse Group SA was not entitled to indemnity costs because its motion was unnecessary, it unreasonably resisted a practical substitution course, and the Suzlon parties' refusal of its Calderbank offers was not unreasonable; only costs thrown away by the misnomer were payable.

Jurisdiction
Australia
Judgment Date
12 August 2011
Procedural Posture
Second Cross Claim in Admiralty; Practice and Procedure Application Concerning Misnomer, Substitution and Costs / Determination of Credit Suisse Group Sa's Motion Filed 19 July 2011 and the Suzlon Parties' Motion Filed 1 August 2011
Outcome
Credit Suisse AG substituted for Credit Suisse Group SA; Credit Suisse Group SA's motion dismissed with no order as to costs; Suzlon parties ordered to pay Credit Suisse Group SA's costs thrown away by reason of the misnomer.
Legal Topics
['misnomer of Party' 'amendment to Correct Name or Identity of Party' 'substitution of Party' 'service Abroad Under the Hague Convention' 'indemnity Costs' 'calderbank Offer' 'overarching Purpose']
['practice and Procedure' 'federal Court Civil Procedure' 'costs'] ['misnomer of Party' 'amendment to Correct Name or Identity of Party' 'substitution of Party' 'service Abroad Under the Hague Convention' 'indemnity Costs' 'calderbank Offer' 'overarching Purpose']

Case Brief

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Procedural Posture

Second Cross Claim in Admiralty; Practice and Procedure Application Concerning Misnomer, Substitution and Costs / Determination of Credit Suisse Group Sa's Motion Filed 19 July 2011 and the Suzlon Parties' Motion Filed 1 August 2011

Legal Issues

  1. 1 ['Whether naming Credit Suisse Group SA as fifteenth second cross defendant was a misnomer or a misjoinder.' 'Whether Credit Suisse AG should be substituted for Credit Suisse Group SA under O 13 r 2(4) of the Federal Court Rules 1979 (Cth).' 'What costs consequences should follow where Credit Suisse Group SA was named as a party in error.' 'Whether Credit Suisse Group SA was entitled to indemnity costs based on its offers to settle.']

Ratio Decidendi

Credit Suisse Group SA was named by misnomer, not misjoinder, because the Suzlon parties intended to sue the legal person conducting the pleaded Credit Suisse private banking business and mistakenly identified that person as Credit Suisse Group SA. O 13 r 2(4) permitted substitution of Credit Suisse AG, the entity answering that description, and O 13 r 2(5) gave the substitution effect from commencement. Credit Suisse Group SA was not entitled to indemnity costs because its motion was unnecessary, it unreasonably resisted a practical substitution course, and the Suzlon parties' refusal of its Calderbank offers was not unreasonable; only costs thrown away by the misnomer were payable.

Court Disposition

Credit Suisse AG substituted for Credit Suisse Group SA; Credit Suisse Group SA's motion dismissed with no order as to costs; Suzlon parties ordered to pay Credit Suisse Group SA's costs thrown away by reason of the misnomer.

Orders

  • ['Pursuant to r 1.04(3) of the Federal Court Rules 2011 (Cth) the Federal Court Rules as in force immediately before 1 August 2011 apply to the determination of the motions filed by Credit Suisse Group SA on 19 July 2011 and the Suzlon parties on 1 August 2011, including in respect of taxation of any costs.'...