Tim Gordon Property Group Pty Ltd v Helensvale Property Development Pty Ltd and Anor [2015] QSC 19

[1] This is an application pursuant to rule 377 of the Uniform Civil Procedure Rules for the plaintiff to be granted leave to file and serve an amended claim. The application, baldly stated, skips over the significant problem that the plaintiff, called Tim Gordon Property Group Pty Ltd ACN 100 631 418, is, in effect, not a company, and the amendments sought to be made are to substitute for it a company described as Gordon Corporation Pty Ltd ACN 159 694 261 together with a number of consequential amendments in the proposed amended statement of claim. It is said to be an application able to be brought simply pursuant to rule 377's power to amend an originating process.

[2] The proceedings are at an early stage, there is no limitation issue and the problem about the proper description of the plaintiff was drawn to the attention of the solicitors acting for the plaintiff on 5 January 2015 in exhibit TRG3 to the second affidavit of Mr Gaven filed in the proceeding. That letter pointed out that the firm of Clayton Utz acted for the defendants, who were a company and a man alleged to be a director of the company, and it went on to point out that a company search showed that the named plaintiff, Tim Gordon Property Group Pty Ltd does not exist and that the ACN used in the heading to the action was of a company called TMG Property Group Proprietary Limited, whose sole director and shareholder was a man called Robert Mitrevski, contrary to the matters pleaded in paragraph 1 of the statement of claim. It is apparent that the proceedings do not involve actions of that company or Mr Mitrevski. The defendants then asserted that the proceedings appeared to be a nullity and sought clarification.

[3] A reply of 6 January 2015 from the solicitor for the named plaintiff and for Gordon Corporation, which is, in effect, the applicant in these proceedings, said that she was in the process of seeking further instructions from her client in relation to the identity of the proper plaintiff in the proceedings, and foreshadowed this application.

[4] Subsequently, in an email of 9 January 2015, she proffered a possible explanation for what had occurred based on an ASIC search she had done for Tim Gordon Property Group Pty Ltd and said that she suspected that the drafter of the pleadings did not notice the difference in the name and used the ACN erroneously.

[5] She has sworn an affidavit setting out that she did not have instructions to issue proceedings on behalf of the company TMG Property Group Pty Ltd with the ACN 100 631 418 and has sworn that her firm had and has instructions to issue proceedings on behalf of Gordon Corporation. That has not been challenged by cross-examination, although it is pointed out that Mr Gordon has been the director of numerous companies and continues to be a director of 17 companies referred to in an ASIC search attached to Mr Gaven's third affidavit.

[6] The application is resisted principally on the basis that it is not properly an application simply to amend a misnomer, but is also covered by rules 69 and 70; namely that, in the circumstances, what has happened is that there is an application being brought to include Gordon Corporation as a party pursuant to rule 69, subrule (1), which has the consequence that, under rule 70, unless the Court orders otherwise, an application by a person seeking to be included as a party must be supported by an affidavit showing the person's interest in the matter in dispute in the proceeding, or a matter in dispute to be decided between the person and a party to the proceeding.

[7] Subsection (2), interestingly, also provides that, unless the Court orders otherwise, an application to include a person as a defendant or respondent must be served on all existing parties and on the person, which raises the question of whether Tim Gordon Property Group Pty Ltd ACN 100 631 418 is an existing party if, for example, the ACN could be used as a direction as to the particular party named in the proceedings. Nobody appeared to be particularly concerned about the failure to notify Mr Mitrevski's interests and the company associated with that ACN number, however.

[8] One might think that that reliance upon rule 70 in the circumstances could have been readily complied with by the filing of an affidavit by interests associated with Gordon Corporation. I raised that with Mr Ananian-Cooper at the commencement of proceedings, but was told that his client wishes to proceed with the application simply on the basis that it was brought under rule 377 and related to, in effect, simply a misnomer of the plaintiff's name. In that context, he relied upon decisions such as Howard v WorkCover Queensland [2000] QCA 31; [2001] 1 Qd R 388, where a defendant company appears to have been wrongly named, and the Court permitted an amendment to the name on the application of the plaintiff, who was clearly a party. It is apparent from page 391 in the reasons of Justice Thomas, which were agreed with by the Chief Justice, that relief in the present situation would readily have been available then under rule 376, subrule (2) of the Rules, as well as under rule 69(2)(g).

[9] Mr Ananian-Cooper also relied upon a decision of A & M Short v Prestige Residential [2005] NSWSC 872; (2005) 54 ACSR 760, particularly at paragraph 32 on page 765. That was a case where there was an application for leave to amend an application to set aside a statutory demand against a non-existent plaintiff. The evidence showed that there was no such company as the one named as A & M Short Pty Ltd, nor was there at any material time. There was, however, a company A & M Short Investments Proprietary Limited, which was the plaintiff, and the plaintiff's solicitor moved to amend the application to make it clear that that was the company to be the plaintiff. That was opposed by the defendant, and the amendment was allowed.

[10] It was pointed out by Mr Sheahan for the respondents in this application that there is no doubt that an application by any other company than A & M Short Investments Proprietary Limited would be a nonsense, because it was in effect, the party to whom the statutory demand was directed. But what seems to me to be important is that in a circumstance such as this, it is the case that rule 377 may be relevant, but it seems to be also clear that rules 69 and 70 are also relevant; something pointed out by Helman J in Aqwell Proprietary Limited v BJC Drilling Services Proprietary Limited [2007] QSC 140 at paragraph 1.

[11] It is also relevant that rule 377 itself involves an exercise of discretion by the Court. In that context, Mr Ananian-Cooper drew my attention to rule 375, which says that if there is misnomer of a party, the Court must allow or direct the amendments necessary to correct the misnomer in rule 375, subrule (3).

[12] It seems to me, however, that this is not simply a question of misnomer of the plaintiff. The plaintiff literally does not exist. The proper plaintiff is now said to be Gordon Corporation, and it seems to be that the effect of the application is really to include it as a party pursuant to rule 69, which seems to me to be also relevant to the proceedings.

[13] Rule 69 is itself then a rule that operates on the basis that the applicant should support it by an affidavit showing the interests of the person sought to be included in a matter in dispute in the proceeding. That is not merely a technical requirement, especially in the factual circumstances highlighted by this case.

[14] The draft amended statement of claim refers to many documents said to be relevant to the relationship between the defendants and the company associated with Mr Gordon. The documents have been produced as exhibit 1, and very few, if any of them, properly refer to Gordon Corporation as an entity associated with the dealings engaged in by Mr Tim Gordon. This is illustrated by the emails and other documents forming part of that exhibit. There is an early reference at page 38, on letterhead headed "TGPG - Tim Gordon Property Group". And there was another document at page 211, which is an email over a logo which appears to be "GC - Gordon Corp". But otherwise there is very little that obviously connects Mr Gordon to Gordon Corporation, the proposed plaintiff in the amended pleading.

[15] It was submitted by Mr Ananian-Cooper, that because of the early stage of the proceedings, I could excuse the failure to support the application by an affidavit under rule 70, and that it would be open to the defendants to seek to clarify issues related to Gordon Corporation's involvement and the other criticisms the defendants have in respect of the allegations in the proceeding which they characterise as serious allegations of, in effect, breach of fiduciary duties, at a later stage of the proceedings.

[16] But it seems to me that, where there is not just an application to amend a misnomer of an existing party, but one which can clearly be characterised also as one to include a new party, then there is no good reason to exclude the requirement of rule 70 to support such an application by an affidavit. Accordingly, I should exercise my discretion under rule 377 to refuse the application.

[17] That, as I understand it, would not prohibit the interests associated with Gordon Corporation, from bringing a subsequent application pursuant to rule 69 and 70 explicitly. But for the current application, based on rule 377, it seems to me that I am entitled to take into account the refusal to support the application by an affidavit of Mr Gordon, in circumstances where the factual material suggests that it would be appropriate for him to have sworn such an affidavit if Gordon Corp were seeking an exercise of the court's discretion in its favour. Accordingly, it seems to me that the application should be dismissed.

[18] [Note: See transcript for discussion of costs and stay of proceedings]

[19] The application is dismissed, with costs.

[20] I'll stay the current proceedings until further order of the court.