John W Wade v The Proprietors SP 56752 & Ors [2004] NSWSC 312

John W Wade v The Proprietors SP 56752 & Ors [2004] NSWSC 312

The Tribunal had power under s 32 of the Consumer, Trader and Tenancy Tribunal Act 2001 to amend an application and substitute the correct respondent company for an incorrectly named individual, where the mistake was genuine, was not misleading and there was no reasonable doubt as to identity; such amendments take effect from the date of the original application even if beyond the limitation period; thus, the Tribunal's order was valid and the challenge failed.

Parties
Plaintiff: John W Wade Pty Limited; First Defendant: The Proprietors Strata Plan 56752; Second Defendant: Fair Trading Administration Corporation; Third Defendant: John Wenden Wade; Fourth Defendant: Consumer, Trader & Tenancy Tribunal
Jurisdiction
Australia
Judgment Date
21 April 2004
Procedural Posture
Summons / Judgment After Hearing of Summons Challenging Tribunal Amendment Order
Outcome
Summons dismissed. Plaintiff to pay costs. Exhibits may be returned.
Legal Topics
Amendment of Parties, Mistake as to Identity, Tribunal Powers, Limitation Period
Administrative Law Amendment of Parties Mistake as to Identity Tribunal Powers Limitation Period

Case Brief

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Parties

John W Wade Pty Limited

Plaintiff

The Proprietors Strata Plan 56752

First Defendant

Fair Trading Administration Corporation

Second Defendant

John Wenden Wade

Third Defendant

Consumer, Trader & Tenancy Tribunal

Fourth Defendant

Procedural Posture

Summons / Judgment After Hearing of Summons Challenging Tribunal Amendment Order

Legal Issues

  1. 1 Whether the Consumer, Trader and Tenancy Tribunal had power to amend an application by substituting the correct respondent company for an incorrectly named individual after the limitation period expired
  2. 2 Whether the amendment effected a substitution outside the permissible scope of the Tribunal's amendment powers

Ratio Decidendi

The Tribunal had power under s 32 of the Consumer, Trader and Tenancy Tribunal Act 2001 to amend an application and substitute the correct respondent company for an incorrectly named individual, where the mistake was genuine, was not misleading and there was no reasonable doubt as to identity; such amendments take effect from the date of the original application even if beyond the limitation period; thus, the Tribunal's order was valid and the challenge failed.

Court Disposition

Summons dismissed. Plaintiff to pay costs. Exhibits may be returned.

Orders

  • The Summons is dismissed.
  • The plaintiff is to pay the costs of the Summons.