Sullivan v Van der Broek [1999] NSWSC 1177

Sullivan v Van der Broek [1999] NSWSC 1177

The amendment did not correct a mistake in the name of a party within SCR Pt20 r4(3). The plaintiff still alleged that the original five defendants were members of the relevant committee and intended to leave them in the proceedings, while adding four further persons alleged also to be members. Because there was no mistake in the names of the original defendants and the amendment sought addition rather than substitution of parties, the Master's order was in error.

Jurisdiction
Australia
Judgment Date
03 December 1999
Procedural Posture
Appeal From Master's Order Allowing Amendment of Statement of Claim / Appeal
Outcome
Appeal allowed
Legal Topics
['amendment to Names of Parties' 'substitution of Parties' 'addition of Parties' 'mistake in Name of a Party' 'supreme Court Procedure']
['practice and Procedure' 'civil Procedure' 'limitation of Actions'] ['amendment to Names of Parties' 'substitution of Parties' 'addition of Parties' 'mistake in Name of a Party' 'supreme Court Procedure']

Case Brief

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Procedural Posture

Appeal From Master's Order Allowing Amendment of Statement of Claim / Appeal

Legal Issues

  1. 1 ['Whether the amendment substituting nine defendants, including the original five defendants and four additional defendants, for the original five defendants was authorised by SCR Pt20 r4(3).' "Whether the plaintiff's error was a mistake in the name of a party or an attempt to add parties who ought to have been joined."]

Ratio Decidendi

The amendment did not correct a mistake in the name of a party within SCR Pt20 r4(3). The plaintiff still alleged that the original five defendants were members of the relevant committee and intended to leave them in the proceedings, while adding four further persons alleged also to be members. Because there was no mistake in the names of the original defendants and the amendment sought addition rather than substitution of parties, the Master's order was in error.

Court Disposition

Appeal allowed

Orders

  • ['Appeals allowed.' 'Set aside orders of Master Harrison of 14 September 1998.' 'In lieu thereof order the notice of motion filed 20 July 1998 be dismissed with costs.' 'Respondents to pay appellants costs of the appeal.' 'Respondents to have Certificate under Suitors Fund Act if qualified.']