John W Wade v The Proprietors SP 56752 & Ors

Supreme Court of NSW|2004-04-02

CITATION : John W Wade v The Proprietors SP 56752 & Ors [2004] NSWSC 312 HEARING DATE(S) : 2 April 2004 JUDGMENT DATE : 21 April 2004

JURISDICTION: Common Law Division Administrative Law List JUDGMENT OF : Master Malpass DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned.

CATCHWORDS : Amendment power - mistake as to identity - mistake may be corrected. LEGISLATION CITED : Consumer, Trader and Tenancy Tribunal Act 2001, s 26, s 32, s 32 (2), s 50. Home Building Act 1989. Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231. CASES CITED : McGee v Yeomans (1977) 1 NSWLR 273. Maamary v Pepsico Australia Pty Ltd & Ors [2001] NSWCA 375. John W Wade Pty Limited (Plaintiff) v PARTIES : The Proprietors Strata Plan 56752 (First Defendant) Fair Trading Administration Corporation (Second Defendant) John Wenden Wade (Third Defendant) Consumer, Trader & Tenancy Tribunal (Fourth Defendant) FILE NUMBER(S) : SC 30036 of 2003 Mr M Pesman (Plaintiff) COUNSEL : M Dolenec (First Defendant) N/A (Second, Third & Fourth Defendants) Snelgroves (Plaintiff) Turnbull Bowles Lawyers Pty Limited (First Defendant) SOLICITORS : D I Catt - Submitting Appearance (Second Defendant) N/A (Third Defendant) I V Knight - Crown Solicitor - Submitting Appearance (Fourth Defendant)

LOWER COURT Consumer, Trader & Tenancy Tribunal JURISDICTION : LOWER COURT HB 99/78348 FILE NUMBER(S) : LOWER COURT M Balding, Senior Member JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30036 of 2003 John W Wade Pty Limited v The Proprietors Strata Plan 56752 & Ors

JUDGMENT 1 MASTER: On 22 December 1999, an application was made in the Consumer, Trader and Tenancy Tribunal (the Tribunal). It was later to be prosecuted by The Proprietors of Strata Plan 56752 (The Body Corporate). For present purposes, what is relevant is that part of the application which sought relief in respect of defective work. The relevant respondent was named as John Wenden Wade (Wade). The intention manifested by the content of the application was to sue the builder of the defective work. 2 It appears that the builder was not in fact Wade but his company John W Wade Pty Limited (the Company). 3 Further, it appears that the Tribunal intended to serve the application on the Company and that it did so by serving Wade. 4 Both sides came to be represented. The solicitor for The Body Corporate was notified that the Company and not Wade was the builder. 5 On 14 November 2001, a separate issue was determined and it was found that the builder was John W Wade Pty limited. 6 An application was made by Wade to have the proceedings dismissed. This application led The Body Corporate to move to file an amended application naming the Company as the respondent (the order sought was that the second respondent be amended to John W Wade Pty Limited). This was not done until 6 February 2003. By this time, more than three years had elapsed since the date on which the work was done. 7 Under the provisions of the Home Building Act 1989, the Tribunal does not have jurisdiction in respect of a building claim if the date on which the claim was lodged is more than three years after the date on which the work was done. 8 The amendment application was opposed. No question of service was raised. The opposition was founded on a question of futility. 9 Following the contested hearing, the Tribunal made inter alia the following order:- "1. The Tribunal amends the Application by substituting John Wade Pty Limited as the Second Respondent in these proceedings in place of John Wade. …………………………………………."

Written reasons for that decision were provided by the Tribunal. 10 In reaching the decision, the Tribunal had regard to its powers of amendment and inter alia the decision in Maamary v Pepsico Australia Pty Ltd & Ors [2001] NSWCA 375 and McGee v Yeomans (1977) 1 NSWLR 273. 11 By Summons filed on 17 April 2003, the Company brought a challenge to the decision. It seeks to have the decision quashed. 12 The Summons was heard on 2 April 2004. Only the plaintiff and the first defendant appeared at the hearing. Both parties relied on written submissions which were supplemented by oral argument. 13 Before proceeding further, I should mention one matter. It was raised during the hearing. The order made by the Tribunal contains error. It refers to John Wade Pty Limited, whereas the correct entity is John W Wade Pty Limited. Nothing turns on this error and no point was made concerning it. It can be dealt with by exercise of the Tribunal's powers of correction (s 50 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the Act) which allows for the correction of "obvious error"). 14 The real issue between the parties concerned whether or not the order could be made pursuant to the Tribunal's powers of amendment. The powers may be found in s 32 of the Act. It is in the following terms:- " 32 Amendments and irregularities

(1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice.

(b) on such terms as the Tribunal thinks fit, but may only be made after notifying the party to whom the amendment relates.

(3) If a provision of this Act or the regulations is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal otherwise determines.

(4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings." 15 In the written submissions made on its behalf in these proceedings, the Company has conceded that this section would permit the correction of a misnomer or other misdescription of a party. However, it is contended therein that it would not allow the substitution of a person for an extant party. This would seem to be a submission that was not put to the Tribunal. 16 In oral submissions an issue was raised based on the construction of subs (2). Again, it was a submission that was apparently not put to the Tribunal. I shall return to that matter in due course. 17 The powers of amendment are expressed in the widest terms. It is well established that the width of such a power enables an amendment to be made inter alia even though a relevant limitation period has expired (see McGee). Further, it is well established that any amendment made under such a provision takes effect from the time when the application was filed. Further, it is well established that such a provision enables an amendment to correct any genuine mistake as to the identity of the person being sued provided that the party seeking to amend showed that the mistake was neither misleading nor such as to cause reasonable doubt as to the identity of that person (see inter alia Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231). 18 The reasons reveal that the substance of what the Tribunal was intending to do was to correct what was seen to be a genuine mistake as to the identity of the party being sued. 19 This might well be described as one of those classic cases of mistake. In my view, it is clear that The Body Corporate intended to sue the builder. There was a genuine mistake as to the identity of the builder. Wade and not the Company was named as the respondent. The correction of the mistake involves the substitution of the Company for Wade. 20 It has not been said (nor could it be said) that the mistake was either misleading or such as to cause reasonable doubt as to the identity of the person. The mistake was in fact brought to the attention of The Body Corporate by those acting on behalf of Wade and the Company. The finding on the separate issue was determined prior to the application. 21 In my view, the Tribunal had power to correct the mistake made as to the identity of the respondent. The width of the power enabled that to be done. It was not joining a non-party. Further, it had jurisdiction when the application was brought. The amendment takes effect from that time. Any errors in the present terminology of the order can be dealt with by an exercise of the powers of correction. 22 During the course of the hearing before this Court, counsel for the Company put a submission that s 32 does not enable an amendment which brings about the joinder of another party. Emphasis was placed on the words "but may only be made after notifying the party to whom the amendment relates" which appear in subs (2) of s 32. Reference was made to s 26 which is a source of power enabling the Tribunal to add or join a non-party as a party in proceedings (where the Tribunal is of the opinion that a person should be joined as a party). It is a submission made which I do not find to be persuasive. 23 In my view, subs (2) of s 32 does no more than impose a requirement that the party to whom the amendment relates be notified. I consider that it was not intended to take away the power provided by a general amendment provision to correct genuine mistakes as to identity (whether or not a substitution is involved). Amendments may be made without notification to a non-party sought to be affected by the amendment and this is often done. 24 A party seeking to disturb an order made by the Tribunal bears the onus of satisfying the court that it should be entitled to such relief. In my view, in this case, that onus has not been discharged. 25 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned.

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