Brookfield v Davey Products Pty Ltd [2002] FCA 889

Brookfield v Davey Products Pty Ltd [2002] FCA 889

The costs orders were always intended to operate in favour of the entity originally named Davey Products Pty Ltd, which changed its name to Yevad Products Pty Ltd on 6 March 1995. The continued use of the former name in the title was a misnomer, not a change in the identity of the party, and Mr Brookfield understood the true identity of the first respondent and would suffer no prejudice. It was therefore appropriate to amend the title of the proceedings from 6 March 1995, but not necessary or appropriate to amend the judgments themselves under the slip rule or variation power.

Jurisdiction
Australia
Judgment Date
24 July 2002
Procedural Posture
Practice and Procedure Application Concerning Misnomer and Amendment of Title of Proceedings After a Respondent Changed Its Name / Reasons for Decision on the First Respondent's Notice of Motion Dated 14 June 2002, After Dismissal of the Substantive Proceeding and Costs Orders
Outcome
Title of proceedings amended from 6 March 1995; the first respondent ordered to pay the first applicant's costs of the notice of motion.
Legal Topics
['misnomer of Party Name' 'amendment of Title of Proceedings' 'change of Company Name' 'slip Rule' 'costs Orders' 'bankruptcy Notice']
['practice and Procedure' 'corporations' 'bankruptcy'] ['misnomer of Party Name' 'amendment of Title of Proceedings' 'change of Company Name' 'slip Rule' 'costs Orders' 'bankruptcy Notice']

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Procedural Posture

Practice and Procedure Application Concerning Misnomer and Amendment of Title of Proceedings After a Respondent Changed Its Name / Reasons for Decision on the First Respondent's Notice of Motion Dated 14 June 2002, After Dismissal of the Substantive Proceeding and Costs Orders

Legal Issues

  1. 1 ["Whether the judgments or costs orders dated 8 February 1996 and 19 December 1997 should be amended to correct the first respondent's name to Yevad Products Pty Ltd." "Whether the continued use of Davey Products Pty Ltd after the company's 6 March 1995 name change was a misnomer in the title of the proceedings." 'Whether amendment of the title would substitute a different party or cause prejudice to Mr Brookfield.' "Whether the slip rule or the Court's power to vary entered orders should be used."]

Ratio Decidendi

The costs orders were always intended to operate in favour of the entity originally named Davey Products Pty Ltd, which changed its name to Yevad Products Pty Ltd on 6 March 1995. The continued use of the former name in the title was a misnomer, not a change in the identity of the party, and Mr Brookfield understood the true identity of the first respondent and would suffer no prejudice. It was therefore appropriate to amend the title of the proceedings from 6 March 1995, but not necessary or appropriate to amend the judgments themselves under the slip rule or variation power.

Court Disposition

Title of proceedings amended from 6 March 1995; the first respondent ordered to pay the first applicant's costs of the notice of motion.

Orders

  • ['From 6 March 1995 the title of the within proceedings be amended by substituting for the words "Davey Products Pty Ltd" as the first respondent the words "Yevad Products Pty Ltd".' "The first respondent pay to the first applicant costs of and incidental to the first respondent's notice of motion dated 14 June 2002."]