For the Second Respondent: Mr J. Williams of Counsel

1. Order the Principal Registrar to amend the Tribunal's order made 14 April 1999 by substituting for the words "Peninsula Home Improvements" the words "Peninsula Development Corporation Pty Ltd (ACN 078 972 782)".

2. Further order the Principal Registrar to amend the Tribunal's assessment of costs order dated 27 October 1999 by substituting for the words "Peninsula Home Improvements" the words "Peninsula Development Corporation Pty Ltd (ACN 078 972 782)".

1 In this application, the Applicants seek an amendment to an order of this Tribunal made on 14 April 1999 in which the Respondent, "Peninsula Home Improvements", was ordered to pay them a sum of money plus costs. The amendment they now seek is to substitute "Peninsula Development Corporation Pty Ltd (ACN 078 972 782)" in the title of the action for the words: "Peninsula Home Improvements".

2 The application, which had been served upon Peninsula Development Corporation Pty Ltd, came before me on 4 December. Mr Riga appeared on his own behalf and on behalf of his wife and Peninsula Development Corporation Pty Ltd ("the Company") was represented by Mr J. Williams of Counsel. The company resisted the application.

3 The proceeding itself was commenced by the Applicants on 14 January 1998. At the time they issued the application they were unrepresented and appear to have completed the form themselves. The Respondent named in the application form is "Peninsula Home Improvements" and the words "c/- John Laxton" follow. The address given in the application for the Respondent is 253 Bungower Road, Somerville 3912.

4 The file indicates that the proceeding was successfully mediated on 26 February 1998. Terms of settlement were forwarded to the Tribunal and on 12 March 1998 the matter was struck out with a right of reinstatement. The Applicants subsequently complained of a breach by the Respondent of the terms of settlement and on 14 May 1998 the Tribunal ordered that the proceeding be reinstated and an expert be appointed pursuant to s.94 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act") to inspect the premises and file a report.

5 On 18 September 1998 directions were given for the further conduct of the matter and it came on for hearing on 7 and 8 October 1998 and 29, 30 & 31 March 1999. On 14 April 1999 the Tribunal's decision was handed down together with twelve pages of reasons. It is clear from these reasons that the application was contested by "Peninsula Home Improvements" and that it was represented at the hearing by Mr J. Laxton who is described in the reasons as "Director". It is also clear from the reasons that a number of witnesses gave evidence on behalf of the Respondent. The Applicants were represented by Counsel.

6 As already stated, the Applicants were successful. On 27 October 1999 their costs were taxed by the Senior Registrar and allowed at $13,008.10. The Respondent was not represented at the taxation.

7 The insurer of the project subsequently made good the damages awarded but the costs remain outstanding. Since the order of the Tribunal and the order assessing the costs both describe the Respondent as "Peninsula Home Improvements", the Applicants have been unable to execute the order for costs against the Respondent and it is for this reason the amendment is sought.

8 At the hearing before me Mr Riga tendered a number of documents.

9 The first is a project application for insurance, apparently signed on behalf of the Builder, which describes the building practitioner as John Charles Laxton, the building company as "Peninsula Dev" (sic.) and the registered trading name as "Peninsula Home Improvements". The address given in this document for the Builder is 253 Bungower Road, Somerville. I was also provided with a copy of the building contract which describes the Builder as being "Peninsula Home Improvements" of 253 Bungower Road, Somerville. The contract contains a registered building practitioner's number of DB-U10996 which, I am told, is Mr Laxton's number. This number also appears in the application for insurance.

10 The certificate of insurance relating to the project was tendered which described the Builder as being John Laxton and his practitioner number as stated above.

11 The third document tendered is a letter headed "Peninsula Developments P/L Trading as peninsula home improvements" (sic). The letter is dated 27 June 2000 and is addressed to Mr and Mrs Riga. It is signed by John Laxton. The opening paragraph of this letter is as follows:-

"Please be advised that Peninsula Developments P/L Co Trading as peninsula home improvements has ceased trading as a building company and has no way of paying this debt." (sic.)

12 Two letters addressed to the Applicant's former solicitors were also tendered, dated in 1998 and 1999. One of these refers to John Laxton and the other is apparently signed by him. Each is on the printed notepaper of Peninsula Home Improvements. Contrary to legal requirements the name and ACN number of the company carrying on business as Peninsula Home Improvements is not stated on the notepaper but the address of the Builder is the same as its address in the contract.

13 A Business Names' extract obtained from the Business Names Registry was tendered in regard to the registered business name "Peninsula Home Improvements". It shows that, up to 1 July 1997 the "proprietor" of the business name was John Charles Laxton and that the current proprietor is Peninsula Development Corporation Pty Ltd of the same address. The "start date" of that company's registration is 1 July 1997, that is, more than three months before the building contract was entered into with the Applicant.

14 Also tendered is a company extract obtained from the Australian Securities and Investments Commission concerning Peninsula Development Corporation Pty Ltd. This document shows that the sole Director, Secretary and shareholder of the company is and was at all material times John Charles Laxton of 253 Bungower Road, Somerville and that that address is the company's current principal place of business.

15 From this evidence it is quite clear that the Builder that carried out the work complained of was Peninsula Development Corporation Pty Ltd and that at all material times it was carrying on its business under the name "Peninsula Home Improvements" and was registered as such. At first sight therefore there would seem to be no reason why the business name in the title to this application should not be replaced with the name of the legal entity that business name represents. However, Mr Williams argues that as a matter of law I cannot do this.

16 In the first place, he suggested that the application is equivalent to joining another party to the proceeding after it has been concluded. I do not agree. What the Applicants are seeking to do here is not the joinder of any other party but rather, to replace a business name in the title to the application with the name of the entity that that business name represents. That does not involve the replacement of a party with another party. It merely corrects the description of the existing party. It would be absurd to suggest that, in defending the proceedings over several days and calling witnesses, Mr Laxton was doing anything other than representing the company of which he was the sole Director, Secretary and shareholder and the company which was the builder which carried out the work complained of. There is no doubt in my mind that the company considered that it was the Respondent to these proceedings and acted as such in vigorously defending them. There is quite clearly no other party involved which Mr and Mrs Riga want replaced with the company.

17 Mr Williams further submitted that the proceedings were a nullity because, he said, they were not issued against a legal entity or person. I do not agree. They were issued against the Builder which entered into the building contract with the Applicants and, as already stated, the Builder recognised that fact and defended the proceedings. They were not issued against a non existent party. Rules of court commonly provide that a plaintiff may sue a firm in its business name. If this is done, the plaintiff is not suing the business name but rather, the members of the firm carrying on business under that name. Similarly, in this case Mr and Mrs Riga are not suing "Peninsula Home Improvements" which is a mere title but rather, the entity that bears that title.

18 Mr Williams points out that under s.62 of the Act a Director must, if acting on behalf of a company, provide a certificate authorising him to so act and that this did not occur in this case. However a mere non-compliance with a requirement such as this cannot enable a Director to say at this late stage that therefore his actions in representing the company at the hearing were unauthorised and should be totally disregarded. Mr Williams' suggestion that, in the absence of such an authority the Tribunal should consider that the shareholders or Directors of the company might have taken a different course than that pursued by Mr Laxton is not sustainable in the present case since he is the only shareholder and Director of the company.

19 Mr Williams accepted that s.119 of the Act would allow the Tribunal to correct an order in the circumstances set out in that section but suggested that it cannot be applied to the present case. He said that no mistake or accidental slip or omission has occurred. This is the substantive submission by Mr Williams and calls for some consideration. The section is in the following terms:-

Section 119

"(1) The Tribunal may correct an order made by it if the order contains-

(b) an error arising from an accidental slip or omission; or

(c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or

20 When a proceeding is determined by a court or tribunal the court or tribunal is then functus officio and generally has no power to revisit the matter or undo what it has done in the absence of some provision in the statute or rules authorising it to do so. Section 119 sets out what it is commonly called the "Slip Rule" and a similar provision is to be found in the Rules of Civil Procedure, Chapter 1 36.07, which provides:-

"The court may at any time correct a clerical mistake in a judgment or order or an error arising in a judgment or order from an accidental slip or omission."

21 The extent of the jurisdiction conferred by this rule is extensively discussed in "Williams Civil Procedure Victoria" I. 36.07.55. A reading of the authorities gathered in that reference shows that the operation of the rule is very wide indeed. The learned authors refer to the case of R. -v.- Cripps ex parte Muldoon [1984] QB 686 at p. 695 where Donaldson MR said (citations omitted):-

"It is surprisingly wide in its scope. Its primary purpose is akin to rectification, namely, to allow the court to amend the formal order which by accident or error does not reflect the actual decision of the Judge. But it also authorises the court to make an order which it failed to make as a result of the accidental omission of Counsel to ask for it. It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended."

22 The test as to whether a mistake or omission is accidental is, in my view: " If the matter had been drawn to the court's attention, would the correction at once have been made?" (see Williams 1.36.07.65 and the cases there cited).

23 It is clear that the rule extends well beyond a mere clerical slip. In University of Ballarat -v.- Deborah Bridges and the Equal Opportunity Board (No. 7134 of 1993 - Court of Appeal 23 February 1996 - unreported). Tadgell J.A., in a judgment in which Ormiston J.A. and Teague J. concurred, amended an order by deleting a reference to the second respondent in an order for costs, so that the order for costs would not then apply to the second respondent. He said that the court had inadvertently made an order for costs against the Board when, had its mind been turned to the true position, it would not have made such an order.

24 Section 119 appears to be wider in its terms than Rule 36.07, in that it specifically refers to "...a material mistake in the description of any person...". But whether it is or not, I think it is quite clear in this case that, had the Tribunal's mind been directed to the fact that the Builder was described in the proceedings by its business name and that not by its legal title, it would have corrected the deficiency at once to record what was incontestably the position, that is, that the name of the Respondent was Peninsula Development Corporation Pty Ltd. That would be sufficient to enable the Slip Rule to be applied and I think that it also comes within s. 119.

25 My conclusion therefore is that, in issuing these proceedings against Peninsula Home Improvements, Mr and Mrs Riga were not suing a non-existent entity but were suing the Builder under its business name, which was the very name by which it described itself in the contract.

26 The application will therefore be allowed. I order the Principal Registrar to amend the Tribunal's order made 14 April 1999 by substituting for the words "Peninsula Home Improvements" the words and figures: "Peninsula Development Corporation Pty Ltd (ACN 078 972 782)". I further order that the Principal Registrar make the same amendment to the assessment of costs dated 27 October 1999. Costs will be reserved.