Short v Hartley Plumbing (Qld) P/L & Ors [2003] NSWSC 46

Short v Hartley Plumbing (Qld) P/L & Ors [2003] NSWSC 46

The plaintiff's solicitor always intended to sue the head contractor and occupier, and the statement of claim pleaded a case against the head contractor; naming Richards Avenue Pty Limited instead of Cordukes Limited was a genuine mistake that was not misleading or productive of reasonable doubt as to the intended party. In the exercise of discretion, leave to amend under Part 20 r 4(3) was appropriate, particularly because Cordukes Limited was already a party to the proceedings by cross-claim. The amendment related back to the filing of the statement of claim, so an extension under the Limitation Act 1969 (NSW) was unnecessary.

Jurisdiction
Australia
Judgment Date
14 February 2003
Procedural Posture
Common Law Proceeding Concerning Substitution of Defendant for Personal Injury Claim / Notice of Motion for Leave to Amend Proceedings to Substitute Cordukes Limited as Third Defendant, With Alternative Application for Extension of Limitation Period
Outcome
Leave granted to amend the proceedings to substitute Cordukes Limited as third defendant; each party to bear its own costs of the motion.
Legal Topics
['amendment of Pleadings' 'mistake in Name of Party' 'substitution of Defendant' 'relation Back of Amendment' 'extension of Limitation Period' 'costs of Motion']
['civil Procedure' 'limitation of Actions' 'personal Injury' 'construction Safety'] ['amendment of Pleadings' 'mistake in Name of Party' 'substitution of Defendant' 'relation Back of Amendment' 'extension of Limitation Period' 'costs of Motion']

Case Brief

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Procedural Posture

Common Law Proceeding Concerning Substitution of Defendant for Personal Injury Claim / Notice of Motion for Leave to Amend Proceedings to Substitute Cordukes Limited as Third Defendant, With Alternative Application for Extension of Limitation Period

Legal Issues

  1. 1 ['Whether the naming of Richards Avenue Pty Limited instead of Cordukes Limited was a mistake in the name of a party within Part 20 r 4(3) of the Supreme Court Rules.' 'Whether the mistake was misleading or caused reasonable doubt as to the identity of the person intended to be made a party.' 'Whether discretion should be exercised to allow the amendment despite delay.' 'Whether an extension of the limitation period under s 60C of the Limitation Act 1969 (NSW) was necessary or should be granted in the alternative.' 'What costs order should be made on the motion.']

Ratio Decidendi

The plaintiff's solicitor always intended to sue the head contractor and occupier, and the statement of claim pleaded a case against the head contractor; naming Richards Avenue Pty Limited instead of Cordukes Limited was a genuine mistake that was not misleading or productive of reasonable doubt as to the intended party. In the exercise of discretion, leave to amend under Part 20 r 4(3) was appropriate, particularly because Cordukes Limited was already a party to the proceedings by cross-claim. The amendment related back to the filing of the statement of claim, so an extension under the Limitation Act 1969 (NSW) was unnecessary.

Court Disposition

Leave granted to amend the proceedings to substitute Cordukes Limited as third defendant; each party to bear its own costs of the motion.

Orders

  • ['Leave is granted to the plaintiff to amend the proceedings to name as third defendant "Cordukes Limited" in lieu of "Richards Avenue Pty Limited".' 'Each party is to pay his/its own costs of the motion.']