In the matter of GHS Safety Products Australia Pty Ltd (No 2)

HER HONOUR: I heard these proceedings on 5 June 2019 and reserved judgment until 6 June 2019 when I made the following orders:

On 7 June 2019 the liquidator’s office emailed the plaintiff barrister as follows:

On Saturday, 8 June 2019, the barrister emailed the liquidator’s email to my associate and sought to amend the orders under the ‘slip rule’ to refer to GHS Safety Products Australia Pty Ltd. The company’s solicitor emailed my chambers submitting that the amendment could not be made under the slip rule. I requested the parties to provide submissions and proposed to then deal with the matter on the papers.

Rule 36.17 of Uniform Civil Procedure Rules 2005 provides:

As Spigelman CJ (with whom Santow JA and Handley AJA agreed) explained in Newmont Yandal Operations Pty Ltd v J Aron Corporation and the Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195, when interpreting rule 36.17 the court must bear in mind the overriding purpose of section 56 of the Civil Procedure Act 2005 (NSW) and rules: to facilitate the just, quick and cheap resolution of the real issues in the proceedings. At [116]:

The criteria for determining whether a proposed correction is justified under the slip rule is often said to be the hypothetical inquiry as to whether the supposed error, if it had been drawn to the attention of the court or the parties at the relevant time, would have been corrected as a matter of course: Ritchie’s at [36.17.5], citing Hatton v Harris [1892] AC 547 at 558.

The ‘slip rule’ in its common law form has been used to substitute the correct name of a party. In Pearlman (Veneers) SA Pty Ltd v Bartels [1954] All ER 659; [1954] 1 WLR 1457, the plaintiffs sued Bernhard Bartels in contract, and then sought to enforce the judgment in Germany. Mr Bartels contended that the judgment was unenforceable as his true name was Josef Bartels and he only used the name Bernhard Bartels when carrying on business, despite having defended the action under the latter name. The Court of Appeal held that the court below had jurisdiction to amend the title of the action where the substantive judgment was in no way altered. Per Denning LJ , with whom Hodson LJ agreed, at All ER 660; WLR at 1459:

The company submitted that a mistake in the name of a party is not amenable to correction under the slip rule, citing Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45. However, that case concerned the Victorian equivalent of section 64 of the Civil Procedure Act 2005 (NSW), which gives the Court power to grant leave to the parties to amend documents in a proceedings, including where there is a mistake in the name of a party, to ensure that the real issues in dispute are determined and to avoid multiplicity of proceedings. Section 64(5) provides:

These proceedings were commenced by the barrister on 17 December 2018 against GHS Safety Products Pty Limited (ACN 112 732 073). The barrister filed an affidavit sworn on 17 December 2018 in which he deposed at paragraph 4:

This misdescription of the name of the company was thereafter repeated in the heading of each court document filed in the proceedings by either party. The identity of the defendant was, however, reasonably discernible from the affidavit in support of the Originating Process and its accompanying company search. Nor could there have been confusion on the subject as there is no company called GHS Safety Products Pty Limited.

Nor do I think there was any confusion on that score at the hearing. The company, in its written submissions, had contended that there was a lack of proper publication of the application to wind up the company. Debate ensued at the commencement of the hearing as to whether:

At the hearing, the barrister tendered an updated company search for GHS Safety Products Australia Pty Limited ACN 112 732 073, to which no objection was taken The consent of liquidator signed by Peter Krejci on 6 February 2019 was given in respect of GHS Safety Products Australia Pty Limited. The barrister also tendered documents and relied on evidence to which the company objected, but not on the basis that it related to the wrong company. That evidence comprised:

The company’s evidence opposing the appointment of a liquidator comprised an affidavit of Paul Ekes and an accompanying lengthy exhibit including documents replete with references to GHS Safety Products Australia Pty Limited.

At the hearing, the company also tendered the following documents:

I note that the same error was contained in the statutory demand and the costs assessment proceedings. The company has itself filed a Summons in the Common Law division of this Court seeking leave appeal against the Costs Review Panel in the name of GHS Safety Products Pty Ltd (although the coversheet issued by the court registry refers to GHS Safety Products Australia Pty Ltd. It would appear that the company has made the same error as the barrister when preparing court documents.

It would have been open to the company to seek to set aside the statutory demand under section 459J(1)(a) by reason of being incorrectly named in it if “because of a defect in the demand, substantial injustice will be caused unless the demand is set aside”. Whether the company would have been able to establish substantial injustice is unknown but the company failed to make an application to set aside the demand within time in any event.

It seems to me, having reviewed the court file and the material considered at the hearing, that if the error in the name of the defendant had been drawn to the attention of the court or the parties at the hearing, it would have been corrected as a matter of course. It was a mistake or error fitting the description in rule 36.17. Having regard to the overriding purpose of the Civil Procedure Act 2005 (NSW) and the rules, as well as the Corporations Act regime under which I appointed Mr Krejci, it is appropriate to give effect to the actual intention of the Court to appoint a liquidator to GHS Safety Products Australia Pty Ltd rather than to a non-existent company to allow him properly to carry out the liquidation in a timely fashion for the benefit of the creditors of the company.

For these reasons, I make the following orders: