By Interlocutory Process filed on 28 March 2018, the Plaintiffs, Mr Michael Smith in his capacity as liquidator of Central Management (NSW) Pty Ltd (in liq) and Central Management (NSW) Pty Ltd (in liq) ("Company"), apply for an order, under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), that the name of the Company in the caption to the proceedings and in the judgment given on 19 September 2017 be amended to Central Management (NSW) Pty Ltd (in liquidation) and to refer to its Australian company number.
That position arises in circumstances where the proceeding was titled "In the matter of Mr Smith in his capacity as liquidator of Central Management (NSW) Pty Ltd" rather than "In the matter of Mr Smith in his capacity as liquidator of Central Management (NSW) Pty Ltd (in liquidation)." Plainly, it was apparent that the Company was in fact in liquidation because the First Plaintiff in the proceedings was its liquidator. That matter was noted in the first paragraph of the judgment which I delivered on 19 September 2017 ([2017] NSWSC 1258), which referred to the fact that the First Plaintiff was Mr Smith in his capacity as liquidator of the Company. Although that judgment reflected the name in which the proceedings had been opened, and referred as the case name to "Central Management (NSW) Pty Ltd" rather than "Central Management (NSW) Pty Ltd (in liquidation)", the parties were referred to in terms that recognised that Mr Smith was the liquidator of the Company which was in liquidation and that the Company was itself in liquidation.
It appears, from the documentary materials and an affidavit of Mr Dale, the solicitor acting for the Plaintiffs, that the omission of reference to "(in liquidation)" in the Company's name arose when the proceedings were electronically filed. Thus, the cover sheet to the proceedings, when they were electronically filed, identified the Plaintiffs as Mr Smith in his capacity as liquidator of the Company, and the Company, in each case without reference to the words "(in liquidation)" although the Originating Process itself included reference to Mr Smith as liquidator of Central Management (NSW) Pty Ltd (in liquidation) and to Central Management (NSW) Pty Ltd (in liquidation) as Plaintiffs.
The Points of Defence filed on behalf of the Defendants, on 9 November 2015, in turn proceeded on the basis that Mr Smith was liquidator of the Company, but did not there use the words "(in liquidation)", but also described the Company that was the Second Plaintiff and there did use the words "(in liquidation)". Again, nothing turned upon that, where it was plain enough that the Company was in liquidation because a liquidator had been appointed to it. The judgment that was published, and the orders that were entered, reflected the form in which the Court's file had been opened, again referring to the Company without reference to the words "(in liquidation)", although it recognised (as noted above) that the Company was in liquidation.
As I have noted, the Plaintiffs now seek to correct that matter by their Interlocutory Process dated 28 March 2018. It appears that the matter has some practical significance, because I have been informed that the Australian Financial Security Authority, which has been approached to issue a bankruptcy notice in respect of the amount of the judgment given against the Second Defendant, Mr Henderson, considered that it is unable to do so where there is a discrepancy between the name of the First Plaintiff recorded in the Court's judgment and order, Central Management (NSW) Pty Ltd, and the name of the applicant for the bankruptcy notice, Central Management (NSW) Pty Ltd (in liquidation). It is not necessary to pause to consider whether that view is well-founded, where it is plain that those entities are the same entity, because they have the same Australian company number. Whether or not that view is well-founded, it is capable of causing real practical inconvenience for the Plaintiffs.
The affidavit of Mr Dale dated 28 March 2018, in support of the application, provides an explanation of how this matter appears to have arisen, which suggests that, at the time the application was electronically filed, Mr Dale's staff may have inadvertently omitted the words "(in liquidation)" immediately after the Company's name, and that matter has in turn been reflected in the Court's file notwithstanding that the Originating Process and other documents filed in the proceedings included those words. There can be no doubt that the Company was in fact in liquidation at the relevant time, not least because a company search that is in evidence discloses notification of the appointment of a liquidator by the Court having occurred in October 2012, well before the proceedings were brought.
There is evidence of service of the Interlocutory Process and affidavit in support on the Second Defendant, Mr Henderson, initially on 20 April 2018, although the first affidavit of service does not annex the Interlocutory Process and affidavit in support. It appears that service was, on that occasion, effected personally. The Interlocutory Process and affidavit in support were served on the First Defendant, an entity known as PP Hotel Investments 1 Pty Ltd, at its registered office on 1 May 2018, together with a letter which indicated that the matter would be heard today. A further copy of the Interlocutory Process and affidavit in support was served on Mr Henderson, although this time not by personal delivery but by delivery to a letterbox at his place of residence, also on 1 May 2018. This was not service of a document initiating a proceeding, since the proceeding had been initiated long ago, but merely notice to Mr Henderson that the application would be heard today, which was given by letter and re-service of documents that had already been served upon him personally.
The application relies on r 36.17 of the Uniform Civil Procedure Rules, which provides that, if there is a clerical mistake, or an error arising from an accidental slip or omission in a judgment or order, the Court may correct that mistake or error on the application of a party or of its own motion. Mr Dale draws attention to the criteria that are directed to whether a correction falls within the scope of this rule, which has regard to the question whether, had this matter been drawn to the attention of the Court or the parties at a relevant time, it would have been corrected as a matter of course. The answer to that question is plainly yes, in this case, where all of the parties and the Court were well aware that the Company was in liquidation at all times and the proceedings were brought by, inter alia, its liquidator. Mr Dale also draws attention to authority that the provision is not restricted to circumstances where the Court itself made the relevant error, and is available where, as here, the error may at least have been caused or contributed to by the incorrect information provided by the Plaintiffs' solicitors to the Registry when the application was electronically filed.
There is also authority, noted in Ritchie's Uniform Civil Procedure NSW, that one application of the rule is to correct, inter alia, the name of a party, which is what is sought to be done here. Mr Dale fairly recognises that an order under this rule involves the exercise of a discretion and may not be made if third party rights would be adversely affected by the amendment. That does not arise here, because the parties to the proceedings, and any third party, would have made the rational assumption that an order made on the application of a company, which all parties knew was in liquidation, would be enforceable in the ordinary way, even if the words "(in liquidation)" were not included in the title of the proceedings, particularly where they were included in the relevant pleadings. That result is consistent with the observations of the High Court as to the scope of a broadly corresponding rule in L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590, to which Mr Dale has drawn my attention.
In these circumstances, I am satisfied that the relevant error was, for the purposes of r 36.17, the result of an accidental slip, or omission, albeit that accidental slip or omission was at least contributed to by the incorrect information provided to the Registry when the proceedings were electronically filed. I am satisfied that the interests of justice would be promoted by making the correction sought, where that will reflect the substantive basis of the proceedings and of the judgment.
For these reasons, I make an order in accordance with the Short Minutes of Order, initialled by me and placed in the file, which provides that the name of the Second Plaintiff and judgment creditor, in the caption to the proceedings and in the judgment given on 19 September 2017, be amended to "Central Management (NSW) Pty Ltd (in liquidation) ACN 139 998 852."
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Decision last updated: 07 June 2018