Collgar Wind Farm Pty Ltd vs. RJE Global Pty Ltd - (27 Oct 2021)

Amendment ought not be allowed to defeat a limitation period

Civil

In present case, On 1 February 2021, the Plaintiff, Collgar Wind Farm Pty Ltd (Collgar), issued a writ naming RJE Global Pty Ltd (RJE Global) as the Defendant. Now, Collgar seeks to amend the name of the Defendant from RJE Global to Australian Contracting Services pursuant to Order 21 Rule 5 of the Rules of the Supreme Court, 1971.

The test is whether the amendment involves the addition or substitution of a party, or the correction of a misnomer. An amendment will only be allowed in the latter case. In Weldon vs. Neal it is held that, an amendment ought not be allowed to defeat a limitation period. Present is not a case of misnomer, misdescription or clerical error because Collgar made an error in identifying the entity that carried out the relevant works and not as to the name of the entity, it incorrectly identified as being that entity. Further, RJE Global contended that in any event, the interests of justice do not favour allowing the amendment.

The error made by Collgar was not a mere misnomer. Contrary to Collgar's submissions, the evidence establishes that in reliance on the expert report, Collgar intended to sue RJE Global in the mistaken belief that it had carried out the cable installation and termination work. It was an error as to identity not a mere misnomer. Collgar could have identified the correct party much earlier. It failed to make proper inquiries. No real explanation is offered for its failure to do so.

The Court has power to allow the amendment without resolving the limitation defence. There is no issue between the parties that, if the amendment is not allowed the limitation period has expired. It is clear from RJE Global's submissions that, Australian Contracting Services intends to rely upon the limitation defence. It is not merely theoretical that, the limitation defence will be pleaded. To allow the matter to proceed further would be a futile and inefficient use of the limited resources of the parties and the Court. Accordingly, the application should be dismissed.

Tags : AMENDMENT CORRECTION MISNOMER