Gorczyski v W & FT Osmo Pty Ltd

Factual Background

1. The proceedings were commenced in the District Court by a Statement of Claim filed 5 May 2006 ("the Statement of Claim") which alleged professional negligence arising from Certificates of Inspection and Reports that were provided by Osmo P/L, and claimed damages originally estimated at about $400,000 ("the negligence proceedings").
2. Mr Osmo was a structural engineer claiming to hold a NPER-3 qualification. He had been retained by the owners of 80 Booth Street Annandale ("80 Booth St") in relation to a dispute over the erection of a garage/office building and other works on the property and also partly on the plaintiff's adjoining property (78 Booth St) without the plaintiff's permission or the required development consent of Leichhardt Council ("the Council").
3. The works were declared to be illegal by the Council and Notices of Proposed Orders for demolition were issued unless the owners of 80 Booth Street provided certifications by a properly qualified and insured engineer to the effect that the structures and works complied with Building Codes and were structurally sound and stable.
4. Between May and October 1999, Osmo P/L provided six certificates and reports (the "Certificates") which included a claim that the subject building was not attached to the plaintiff's building, did not rely on his building for structural support and did not encroach on his land.
5. In October 1999, the Council, relied on the Certificates to issue Building Certificates which allowed the illegal structures to remain.
6. The plaintiff contended that Osmo P/L owed a duty of care to the plaintiff with respect to the issuing of the certificates which it breached, a consequence whereof the plaintiff suffered damage.
7. The plaintiff commenced proceedings in the Land and Environment Court of NSW ("the LEC") in January 2000 against 80 Booth Street's owners and the Council, seeking orders for the demolition of the structures and works ("the LEC proceedings"). 80 Booth Street's owners relied on Mr Osmo as their expert witness. Ultimately, the Court found that parts of the works did not comply with any Building code and were structurally unsound.
8. The Council then issued demolition orders on 8 March 2001. However, 80 Booth Street's owners did not completely demolish the structures and the proceedings continued.
9. On 27 June 2002, 80 Booth Street's owners agreed to Consent Orders for demolition of the remaining structures and for rectification of other related works.
10. On 6 February 2003, the LEC ordered 80 Booth Street's owners to pay the plaintiffs costs of the proceedings but did not make an order for costs as between the plaintiff and the Council.
11. The costs incurred by the plaintiff as a result of litigation minus the amount he recovered from any party constitutes the primary loss and damages claimed in the Statement of Claim.
12. On 4 July 2006, Mr Robert Ebner (of Denes Ebner solicitors, acting for Osmo P/L and Mr Osmo personally) informed the plaintiff that Osmo P/L did not intend to defend the proceedings as the company was insolvent.
13. On 7 July 2006, when the matter came before the District Court, there was no appearance by Osmo P/L and it had not filed a defence. The Court gave default judgment on liability and made orders for a future hearing for assessment of the damages amount pending the filing of the plaintiff's evidence on damages ("the default judgment"). The amount of damages claimed at that stage by the plaintiff was $316,816.77.
14. On 17 November 2008 the matter was transferred to the Supreme Court because the re-estimated damages amount exceeded the District Court's jurisdiction ($750,000).
15. On 18 February 2019, ASIC deregistered Osmo P/L for failing to pay their annual registration fee. On 22 October 2020, this Court ordered ASIC to reinstate the registration so that the plaintiff could continue with the proceedings.
16. The Notice of Motion seeks to join Mr Osmo as a defendant and amend the Statement of Claim upon the basis that all necessary persons would then be included in the proceedings in advance of the final hearing. As mentioned, the proposed amended Statement of Claim was annexed to the Notice of Motion ("the Amended Statement of Claim").
17. I heard the plaintiff's application on 30 August 2022.

LEGISLATION

1. Sections 34 and 38(1) of the Act provide: 34 Application of Part (1) This Part applies to the following claims (apportionable claims) - (a) a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care, but not including any claim arising out of personal injury, (b) a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 1987 for a contravention of section 42 of that Act (as in force before its repeal by the Fair Trading Amendment (Australian Consumer Law) Act 2010) or under the Australian Consumer Law (NSW) for a contravention of section 18 of that Law. (1A) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind). (2) In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim. (3) For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1). (3A) This Part does not apply to a claim in an action for damages arising from a breach of statutory warranty under Part 2C of the Home Building Act 1989 and brought by a person having the benefit of the statutory warranty. (4) For the purposes of this Part it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died. (5) (Repealed) 38 Joining non-party concurrent wrongdoer in the action (1) The court may give leave for any one or more persons to be joined as defendants in proceedings involving an apportionable claim.
2. The plaintiff relied on ss 64 and 65 of the CPA in seeking to amend the Statement of Claim. Those provisions are as follows: 64 Amendment of documents generally (1) At any stage of proceedings, the court may order - (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. (4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party. (5) This section does not apply to the amendment of a judgment, order or certificate. 65 Amendment of originating process after expiry of limitation period (1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as - (a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or (b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969. (6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings.

The Proceedings

1. The plaintiff relied upon the following affidavits: 1. Affidavit of the plaintiff dated 23 June 2022. 2. Affidavit of the plaintiff dated 17 August 2022 (and its Exhibit PG-4). 3. Affidavit of plaintiff dated 20 March 2018 (and its Exhibit PG-1). 4. Affidavit of plaintiff dated 27 March 2022.
2. The respondents relied on the affidavit of Tammy Meyer filed 27 July 2022.

The Plaintiff's Submissions

1. Pursuant to ss 64 and 65 of the CPA, the plaintiff sought leave to substitute the first defendant, Osmo P/L, with Mr Osmo and Osmo P/L as joint defendants.
2. The plaintiff relied on Greenwood v Papademitri [2007] NSWCA 221 as authority for the proposition that s 65(2)(b) of the CPA permits the substitution of two defendants for one existing defendant if a mistake had been made in the name of the defendant in circumstances where there was more than one person with the properties described in the statement of claim.
3. In summary, the plaintiff made the following submissions: 1. The cause of action in negligence became complete on 6 February 2003 when the Land and Environment Court made its order for costs. 2. Mr Osmo was a concurrent wrongdoer and is jointly and or/severally liable for the negligence found by the Land and Environment Court and the claimed loss and damage. The plaintiff relied upon ss 34(1)(a), 34(4) and 38(1) of the Act to support the claim for relief in Order 1. 3. Either Mr Osmo alone should have been named as the defendant or both Mr Osmo and Osmo P/L should have been named as defendants "because they both had the properties of being persons whose negligent acts caused the loss and damage". 4. It was always the plaintiff's intention to sue Mr Osmo if it became necessary and the plaintiff put Mr Osmo on notice that he would hold him liable for any loss of damage he suffered as result of Mr Osmo's conduct. 5. It was Mr Osmo who satisfied the Council that he held the proper engineering qualifications to provide them with the required Certificates. It was Mr Osmo who carried out inspections of the property and signed the Certificates. Hence, it was Mr Osmo's personal conduct that amounted to the negligence found by the LEC. 6. It was the plaintiff's then solicitor who decided to name Osmo P/L as the sole defendant. It later became apparent to the plaintiff that Mr Osmo should have been named as the defendant or included as a co-defendant. 7. The basis for joining Mr Osmo was that he is vicariously liable for Osmo P/L's negligent acts. 8. The amendments to the particulars in the Statement of Claim and the addition of the personal injury claim are sought to be made pursuant to s 65(2)(c) of the CPA. The plaintiff submitted that s 65 permits the application be made despite it being out of time. 9. The amendments to the particulars of negligence in the Statement of Claim are not new causes of action, they simply seek to clarify the existing particulars. 10. The personal injury claim arises from the same facts as those giving rise to the existing cause of action and relief in the original claim regarding negligence. 11. Section 64(1)(b) of the CPA permits the Court to grant leave for an application made under s 65(2)(b) to correct a mistake in the name of a party to the proceedings. The Court is required to exercise its discretion in accordance with ss 56, 57 and 58 of the CPA, having regard to matters such as "the knowledge that the person proposed to be added as a party had of the proceedings during the limitation period" and "the nature and degree of any prejudice that person would suffer if the order was made". 12. In considering these factors, Mr Osmo had knowledge that he would be sued, he participated in the proceedings, and he had knowledge of the Statement of Claim. It was Mr Osmo's choice not to file a defence. 13. The respondents have been aware since at least July 2017 of the plaintiff's intention to pursue Mr Osmo personally. The respondents took steps to destroy Osmo P/L's books and records to obstruct the plaintiff's attempt to join Mr Osmo to the proceedings. 14. Mr Osmo is directly responsible for the plaintiff's dire financial position and his poor health. 15. In oral submissions, the respondent clarified that there was no application being brought for security for costs.

The Respondent's Submissions

1. The respondents submitted that the Notice of Motion should be dismissed with costs.
2. Firstly, the respondents submitted that the plaintiff's claims "are hopelessly out of time". It was argued that the plaintiff's application within the Notice of Motion was statute barred: s 14(1) Limitation Act 1969 (NSW).
3. Secondly, the respondents submitted that the proposed Amended Statement of Claim was in a form "liable to be struck out". In summary, the respondents submitted that the Court should refuse leave to the plaintiff to amend the Statement of Claim because: 1. The proceedings have not progressed at all over the past 16 years; 2. The respondents do not have access to the first defendants' books and records which would prejudice their ability to defend the proceedings; 3. The plaintiff is unlikely to be able to satisfy any costs orders made against him with respect to any interlocutory or final judgments in the proceedings and there is an unsatisfied costs order against the plaintiff in favour of the respondents from 19 March 2018.
4. The respondents submitted that, even if the plaintiff could overcome the limitation issues, the claim for aggravated and exemplary damages (at paragraph 16) in the Amended Statement of Claim, is not properly pleaded because it does not arise above the level of assertion. Further, there are no material facts pleaded in support of the assertion in [16] that the defendants are concurrent wrongdoers.
5. The respondents submitted that, if leave to amend the Statement of Claim was refused, the plaintiff's claim against the first defendant would remain on foot. However, the first defendant has no assets and was deregistered until reregistered upon the plaintiff's application.

CONSIDERATION

1. I turn then to the reasons for my decision, firstly by considering the limitation issues faced by the plaintiff.

The Limitation Issues

1. At the outset, I note that the decision of the Court of Appeal of Gorzcynski v W & FT Osmo Pty Ltd [2010] NSWCA 163 ("Gorzcynski 2010") dealt with the very issue arising in these proceedings of the joinder of a party to the proceedings, arising out of the same factual matrix. It was concluded in Gorzcynski 2010 that the claim that was sought to be commenced by a Statement of Claim dated 5 May 2006, (the negligence proceedings), was out of time prior to filing of that Statement of Claim.
2. Section 14(1) of the Limitation Act 1969 (NSW) is as follows: 14 General (1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims - (a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed, (b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty, (c) a cause of action to enforce a recognizance, (d) a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.

The Negligence Proceedings

1. The Amended Statement of Claim alleged at [9] that the first defendant and Mr Osmo "provided various certificates and reports with respect to building works…" during the period from 4 May 1999 to 5 July 2000.
2. At [12], the Amended Statement of Claim alleged that the first defendant and Mr Osmo owed the plaintiff a duty of care. Paragraph [13] (n) alleged that they breached that duty by failing to "identify or report" certain matters, as follows: On each occasion that the Company [Osmo P/L] and Mr Osmo provided a Certificate after the Certificate of inspection No. 5334 dated 4 May 1999, the Company [Osmo P/L] and Mr Osmo failed to review and/or reconsider and/or amend and/or qualify the terms of the certifications provided in previous Certificates.
3. The last such occasion where there was the provision of a certificate was on 5 July 2000, as set out in sub-paragraph (g) of the particulars to paragraph [9] of the Amended Statement of Claim. Thus, I agree with the respondents that the latest alleged breach of the duty of care occurred on 5 July 2000.
4. In paragraph [14] (k) of the Amended Statement of Claim, the plaintiff alleged that "The damages he is seeking to recover from the Defendants is the amount represented by the difference between the Plaintiff's actual costs in the abovementioned proceedings and the amount that he was able to recover from the parties to those proceedings". The plaintiff also affirmed in his affidavit dated 17 August 2022 that "The Court's findings (via the Gleeson Report) and the costs that I had been forced to incur became the foundation for my Statement of Claim".
5. The parties agreed that any actual loss and damages that the plaintiff suffered occurred at the point the plaintiff became liable to pay any non-recoverable costs arising out of the LEC proceedings, that is, the difference between the plaintiff's actual costs and the amount he was able to recover from the parties in the proceedings. The plaintiff commenced the LEC proceedings in January 2000 and the Court made demolition orders on 8 March 2001 and 27 June 2001.
6. The plaintiff submitted that LEC made its orders for costs on 6 February 2003, meaning the limitation period for commencing the proceedings expired on 6 February 2009. The respondents submitted that, if the commencement of proceedings and the making of orders could ever constitute "loss or damage", it occurred at the latest by 27 June 2001, being the date of the final demolition order.
7. The NSW Court of Appeal in Gorczynski 2010 found that the limitation period commenced to run from the point at which the plaintiff incurred non-recoverable costs in the LEC, as opposed to the point in which the Court made an order for costs.
8. In my view, if the negligence proceedings commenced in 2000 (as pleaded by the plaintiff in [14] (c) of the proposed Amended Statement of Claim), then the cause of action was complete in 2000, meaning the Court may find that the plaintiff's claim against Osmo P/L was statute barred prior to the filing of the Statement of Claim on 5 May 2006: see Gorczynski 2010 at [132] - [135].
9. On this approach, the claim is now 16 years statute barred.
10. During oral argument, the respondents submitted that, even if they accepted that the relevant limitation date for the negligence proceedings was 6 February 2003, this would mean the limitation period expired on 6 February 2009. Hence, they submitted that this meant the current claim before the court was 13 years out of date. There is considerable force in this argument.
11. If the claim in negligence for damages quantified by the shortfall in costs incurred in the LEC proceedings, is statute barred, then it follows, that there can be no proper basis to join Mr Osmo as a concurrent wrongdoer, for which the claim is also out of time, particularly where the same limitation issues arise with respect to Mr Osmo.
12. I note for completeness, I agree with the respondents that the proceedings can still be statute barred even if no defence has been filed (see Gorczynski 2010 at [127]).

The Personal Injury Claim

1. In terms of the personal injury claim, the plaintiff pleaded at paragraph [15] of the Amended Statement of Claim that: 15. In addition to the economic losses, the Plaintiff also suffered and continues to suffer personal injury by way of stress and depression. Particulars of Personal Injury (a) To meet the ongoing costs and expenses of the proceedings, the plaintiff initially relied on funds from his computer business but when those funds ran out, he had to borrow very substantial amounts by taking out mortgages over 78 [the plaintiff's property] which was hitherto an unencumbered commercial investment property. The Plaintiff was subsequently unable to meet the mortgage repayments and had to sell the property. (b) The proceedings ended in 2006. The Plaintiff then commenced the current proceedings seeking to recover the losses caused by the Defendants. (c) By 2010, due to lack of operating funds, the Plaintiff had been forced to close down his computer business… (d) Between 2010 and 2012 the Plaintiff fell into a severe depression… (e) The Plaintiff has not been able to gain any meaningful employment since 2012….
2. I agree with the respondents that any personal injury the plaintiff suffered was manifest by, at the latest, 2012. Thus, any possible cause of action the plaintiff had in tort or otherwise was complete and arose at the latest by 2012. The limitation period for commencing such a claim expired six years later, some time in 2018.
3. The personal injury claim is not affected by any of the extensions in time provided for in bringing personal injury claims: see Limitation Act 1969 Part 2 Div. 6, Part 3 Div. 3.

Further Issues with the Orders sought in the Notice of Motion

1. My conclusion as to the operation of the limitation period to the plaintiff's claim is sufficient basis to dismiss the Motion. However, the Motion may also be rejected upon bases connected specifically to the two orders sought in the Motion.

Order 1

1. The plaintiff relied upon both ss 34 and 38 and ss 64 and 65 to support both Orders 1 and 2. For convenience, I will deal with them separately.

Sections 34 and 38 of the Act

1. The plaintiff sought leave to join Mr Osmo as a concurrent wrongdoer. The Amended Statement of Claim does not specifically make allegations regarding the application to join Mr Osmo as a concurrent wrongdoer pursuant to ss 34 and 38(1) of the Act. However, the plaintiff relied upon those provisions in his submissions as the basis for seeking leave to join Mr Osmo as a defendant in proceedings involving an apportionable claim.
2. The respondents are correct that the plaintiff's claim for any loss or damage arising out of personal injury is not an "apportionable claim" as such claims are expressly excluded from the definition of such claims by section 34(1)(a) above.
3. Section 34 of the Act does not cover personal injury claims. It is restricted to economic claims. Section 34 is in the following terms: 34 Application of Part (1) This Part applies to the following claims (apportionable claims) - (a) a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care, but not including any claim arising out of personal injury, (b) a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 1987 for a contravention of section 42 of that Act (as in force before its repeal by the Fair Trading Amendment (Australian Consumer Law) Act 2010) or under the Australian Consumer Law (NSW) for a contravention of section 18 of that Law. (1A) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind). (2) In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim. (3) For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1). (3A) This Part does not apply to a claim in an action for damages arising from a breach of statutory warranty under Part 2C of the Home Building Act 1989 and brought by a person having the benefit of the statutory warranty. (4) For the purposes of this Part it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died. (5) (Repealed)

Sections 64, 65 of the CPA

1. The plaintiff also relied upon the provisions of s 65(2)(b) of the CPA to join Mr Osmo into his claim. In oral submissions, he contended that his application was to substitute the first defendant with two joint defendants, Osmo P/L and Mr Osmo. However, the substance of his application remained the joinder of Mr Osmo to the proceedings "as a concurrent wrongdoer."
2. The plaintiff contended that the provisions of s 65(2)(b) supported the amendment because the failure to incorporate Mr Osmo as a concurrent wrongdoer in the Statement of Claim constituted a mistake in the naming of a party to the proceedings for the purposes of s 65(2)(b) of the CPA.
3. There was no dispute that Mr Osmo was a director and shareholder of Osmo P/L nor was there any dispute that Mr Osmo was a natural person who was an employee of that company, not the company itself.
4. The plaintiff submitted that he relied on the advice of his solicitors at the time, who named Osmo P/L as the defendant, rather than Mr Osmo personally or Mr Osmo and the company. The plaintiff stated that "it was always my intention to sue Mr Osmo and not the company". In his view, his solicitors should have advised him to join Mr Osmo to the application because Osmo P/L was insolvent.
5. Even though the plaintiff variously submitted that his solicitors had provided advice as to the filing of the claim with only the single defendant, Osmo P/L, he did not suggest that the solicitors did so without instructions. Rather, he was critical of their advice and it would seem he was intent on insisting that the solicitors advice was ultimately erroneous and negligent.
6. When properly characterised in that way, it is clear that s 65(2)(b) does not provide a basis to amend the Statement of Claim so as to join a concurrent wrongdoer for the reasons I will now give. In doing so, I should not be taken to suggest that the provision might not permit an amendment to bring in an additional defendant but rather, that the provision did not contemplate an amendment of the character sought by the plaintiff.
7. By his application, the plaintiff does not seek to correct a misdescription or misidentification of the proper defendant or defendants, but rather, seeks to bring in a defendant with different nature and properties in circumstances where there was an express decision not to move against the defendant, at the point of initiation of the Statement of Claim. The plaintiff knew that Mr Osmo had no other capacity than as a director, shareholder of the company and its employee.
8. Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; 66 ALJR 76 ("Bridge") concerned a shipment of goods that were damaged in transit. The defendant later discovered that at the time of the carriage the vessel had been under charter to another company which had therefore been the carrier of goods. The defendant applied under r 36.01 of the Supreme Court Rules (Vic), the rule in question in Bridge, that in issuing the third-party notice against the owner, the company had not made a mistake "in the name of a party" because it had intended to sue the owner of the vessel believing that its right of action lay against the owner.
9. McHugh J (with whom Brennan and Deane JJ agreed) said 259 - 261: The concluding words of sub-r. (4) "whether or not the effect is to substitute another person as a party" enable a plaintiff to substitute one person for another person as a party to the action. Those words also imply that the fact that the plaintiff intended to sue the person who was sued does not prevent the sub-rule applying provided that there was a mistake in the name of the person sued. Moreover, a plaintiff may make "a mistake in the name of a party" not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name. Thus, a plaintiff may make a mistake "in the name of a party" because, although intending to sue a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that person's name. Equally, the plaintiff may make a mistake "in the name of a party" because, although intending to sue a person whom the plaintiff knows by a particular description, eg the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description. In both cases, the plaintiff knows the person intended to be sued by reference to some property or properties which is or are peculiar to that person but is mistaken as to the name of that person. In the first case, the properties which identify the person are personal characteristics; in the second case, they are the properties which are of the essence of the description of that person. But for the purpose of sub-r. (4) that distinction is irrelevant. In both cases, the plaintiff was mistaken only as to the name of the person intended to be sued. There is no warrant for treating sub-r. (4) as dealing only with the case where the properties which identify the party are inherent properties. That is, there is no warrant for treating sub-r. (4) as dealing only with the case where the plaintiff says: "The person I wish to substitute as a party is that entity which I identified by certain inherent properties peculiar to it but whose name I mistakenly believed was X." The sub-rule applies equally to the case where the plaintiff says: "The person I wish to substitute as a party is that entity which I identified by reference to certain properties which are true of it and of no one else and whose name I mistakenly believed was X." In both cases, a mistake in the name of the party has occurred and can be seen to have occurred only because the person sued does not have or is not identified by some property or properties which is or are peculiar to the person intended to be sued and to no one else.
10. The plaintiff relied on the authority of Greenwood v Papademetri [2007] NSWCA 221 ("Greenwood") to support the proposition one can add another party to proceedings by way of substitution. He stated: If you belief, and can demonstrate to the Court, that the properties held by the original defendant, and when I say, "properties", they mean the description in general terms, the description, the role they play, their conduct. If I can demonstrate to the Court that there's another person who holds the same properties, then it's appropriate to have those two people named as the defendant backdated to the commencement of proceedings.
11. In Greenwood, the opponent sustained injuries after falling on a public footpath made slippery by mud from a building site and commenced proceedings against Mr Antoun, the person who she believed to be the owner and occupier of the land. She later discovered that it was in fact Ms Antoun was the sole registered proprietor of the land and sought to add her as a defendant to the proceedings.
12. The Court in Greenwood followed Bridge. Campbell JA held, (Tobias JA agreeing) held at [6] that: [1] As to the construction of section 65(2)(b) Civil Procedure Act 2005: a. The power conferred by section 65(2)(b) Civil Procedure Act is a purposive power that authorises the court to grant leave to a plaintiff to amend the originating process in whatever way is necessary to correct a mistake in the name of a party to the proceedings. b. Section 65(2)(b) applies only to a mistake that is neither misleading, nor such as to cause reasonable doubt as to the identity of the person intended to be made a party. c. The power conferred by section 65(2)(b) is a discretionary power that must be exercised in accordance with section 64(2).
13. The Court held that s 65(2)(b) would not prevent a plaintiff from adding a defendant as an amendment, so as to correct a mistake in the name of a party to the proceedings. Multiple parties could be substituted for a single party under s 65(2)(b). Further, the provision "authorises the court to grant leave to a plaintiff to amend the originating process in whatever way is needed to correct a mistake in the name of a party to the proceedings" (Campbell JA at [33]).
14. However, this case is distinguishable. This is not a case where the plaintiff later found that the true wrongdoer was Mr Osmo, but rather where because of the status of the company, sought to bring proceedings against a further alleged wrongdoer known to him at the point of bringing the claim. That step was taken well after the end of the limitation period.
15. Hence, in my view, as the respondent currently submitted, the plaintiff cannot correct a "mistake" in the name of the party under s 65 of the CPA, when that mistake is the changing of corporate entity to an individual.

Order 2

1. The discussion above as to the operation of s 65 of the Act, applies with equal force to the consideration of the application under Order 2. However, there are additional considerations, as follows.
2. At [14], the Amended Statement of Claim plead that, by reason of the negligence of the first defendant and Mr Osmo, the plaintiff had suffered loss and damage. Sub-paragraph (a) of the particulars referred to the creation of a right of carriageway that burdened the plaintiff's land. By sub-paragraph (b), the plaintiff pleaded that "The plaintiff had to commence proceedings in order to protect his valuable property right and also to ensure his safety and the safety of others who use or may use his property should the building collapse."
3. The respondents are correct in submitting that it is not clear how commencing proceedings can constitute "loss or damage".
4. At paragraph [16] of the Amended Statement of Claim the plaintiff claims "aggravated and exemplary damages". The respondent correctly submitted that the pleadings do not disclose why an award of such damages would be warranted.
5. There are also discretionary considerations weighing against the granting of the second order sought in the Motion
6. There has been excessive delay in the progression of this matter. The plaintiff commenced proceedings in May 2006. Even if the plaintiff has had the intention to amend the Statement of Claim, as he stated since 2017, five years have elapsed since that intention was formed, or at least since the Statement of Claim was filed.
7. Although I have sympathy for the health and financial obstacles the plaintiff has faced, that gives rise to further issues as to whether he will be able to satisfy any costs order made against him.
8. Further, there is the issue of the unsatisfied costs order against the plaintiff consequent him being ordered to pay their costs of his Notice of Motion filed on 19 March 2018 seeking preliminary discovery.
9. Finally, there are the obvious issues of the fairness in the further conduct of the proceedings. Mr Osmo, plainly a key witness for the defence, is now deceased. Even though various issues were revealed by the plaintiff regarding the loss of the defendant's books and records, the fact is that there is a real issue about access to those books and records in the respondents preparing a defence.

CONCLUSION

1. It follows that the plaintiff's application brought by the Notice of Motion for leave to join Mr Osmo as a concurrent wrongdoer to the proceedings and amend the Statement of Claim should be dismissed.

ORDERS

1. Accordingly, I make the following orders: 1. The Notice of Motion filed 3 June 2022 is dismissed. 2. The plaintiff is to pay the defendant's costs of the Notice of Motion or agreed or in default as assessed.

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