Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd

Collgar Wind Farm Pty Ltd appealed against the orders of Curthoys J, who dismissed its application to amend the name of the defendant on the writ in the primary proceedings. The orders were made pursuant to reasons published on 27 October 2021. The appellant sought to amend the name of the defendant from RJE Global to Australian Contracting Services Pty Ltd (ACS). At all material times, RJE Global was a company with a registered office at Wayville, South Australia and a principal place of business in Morphettville, South Australia. Its directors were Robin Andrew Johnson and Dean George Cook. Its shareholders were R & G Johnson Investments Pty Ltd and Incontrol Engineering Pty Ltd. ACS is a company originally registered on 5 June 1996 as Robin John Engineering Pty Ltd. At all material times, it had the same directors, company secretary, registered office and principal place of business as RJE Global, and its shareholders comprised Mr Johnson and Incontrol Engineering Pty Ltd. On 22 August 2018, pursuant to a notification of resolution signed by Mr Johnson and lodged with the Australian Securities and Investments Commission, RJE changed its name to ACS. The appeal was allowed. In the Court of Appeal's view, the primary judge misconstrued and misapplied O 21 r 5, and ground 1 of the appeal should be upheld. Ordinarily, this would mean that the Court of Appeal ought to re-exercise the discretion itself. However, RJE Global contended that the judge expressly found that even if he were wrong on the scope of the power under O 21 r 5 properly construed, the application should be dismissed in any event. In this context, RJE Global referred to the matters referred to in [43] above. The Court of Appeal would not read the primary decision in the way contended for by RJE Global in this regard. Nevertheless, for present purposes, it was immaterial whether the matters referred to in [43] above were advanced as supplying proper grounds for the judge's exercise of discretion even on the assumption that he misconstrued O 21 r 5, or whether they were treated as matters allegedly pointing to the dismissal of Collgar's application on the re-exercise of this Court's discretion. The matters referred to by RJE Global in [43] above were not proper grounds for justifying the dismissal of the application and otherwise did not assist it. To the extent that it was necessary to decide ground 2, it should be allowed. Alternatively, the Court of Appeal would grant leave to amend in the re-exercise of the court's discretion. The appeal was allowed. Orders 1 and 2 of the orders of Curthoys J made 27 October 2021 in CIV 1054 of 2021 were set aside. The appellant had leave to amend the name of the defendant in the writ of summons in CIV 1054 of 2021 from RJE Global Pty Ltd (ACN 607 859 852) to Australian Contracting Services Pty Ltd (ACN 074 273 779), with such amendment to take effect from 1 February 2021. In the memorandum of appearance filed 23 March 2021 in CIV 1054 of 2021, the reference to 'Defendant RJE Global Pty Ltd (ACN 607 859 852)' was to be read as 'Defendant Australian Contracting Services Pty Ltd (ACN 074 273 779)'.