Impressions Finance Pty Ltd v Ridgway - [2010] FMCA 841

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IMPRESSIONS FINANCE PTY LTD v RIDGWAY

[2010] FMCA 841

BANKRUPTCY – Misnomer – misstatement of name of debtor – no controversy about misnomer – debtor never challenged misnomer despite personal service on multiple occasions.

Bankruptcy Act 1966

Elyard Corporation Pty Limited v Ddb Needham Sydney Pty Ltd (1995) FCA 1685
Pearlman (Veneers) S.A. (Pty) Ltd v Bernhard Bartels (1954) 1 WLR 1457

Applicant:

IMPRESSIONS FINANCE PTY LTD

Respondent:

ROBERT RIDGWAY

File Number:

BRG 753 of 2010

Judgment of:

Burnett FM

Hearing date:

6 October 2010

Date of Last Submission:

6 October 2010

Delivered at:

Brisbane

Delivered on:

6 October 2010

REPRESENTATION

Counsel for the Applicant:

Mr Taylor

Solicitors for the Applicant:

Plastiras Lawyers

There was no appearance by or on behalf of the Respondent

ORDERS

That Order 1 made on 25 August 2010 by Registrar Baldwin be amended by substituting the name “Robert Ridgeway” with “Robert Ridgway”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
ATBRISBANE

BRG 753 of 2010

IMPRESSIONS FINANCE PTY LTD

Applicant

And

ROBERT RIDGWAY

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

This is an application bought by the creditor, Impressions Finance Pty Ltd, in respect of Robert Ridgway, the debtor. The creditor seeks orders first that the title of the proceeding be amended so that the name of debtor is amended to read “Robert Ridgeway, R-i-d-g-e-w-a-y, also known as Robert Ridgway, R-i-d-g-w-a-y”. Further that order one, made on 25 August 2010 by Registrar Baldwin, be amended by substituting the name Robert Ridgeway, R-i-d-g-e-w-a-y, to Robert Ridgway, R-i-d-g-w-a-y.
Briefly, the creditors succeeded in obtaining a judgment against the debtor in the District Court on 29 April 2010 in the sum of $69,687.90 including interest and costs. Subsequently, that judgment was obtained against, among others, Robert Ridgeway, R-i-d-g-e-w-a-y. Subsequently, a bankruptcy notice issued and that notice was served upon the debtor. At the time of service of the bankruptcy notice, the process server, Terry Herlihy, presented him with a notice and asked, “Are you Robert Ridgeway, the person named as the second defendant in these documents?” To which the male person replied, “Yes, I am”. That person then accepted the documents. An Act of Bankruptcy was ultimately committed and a creditor’s petition subsequently issued.
Mr Herlihy then re-attended at the premises where he had initially served the debtor. That occurred on 16 August 2010 when, then armed with a creditor’s petition, he again served the debtor with material.
At that time, the following conversation took place after the process server had rung the intercom of the relevant unit. He asked, “Hello, is that Robert Ridgeway?” The respondent answered, “Yes, it is.” The process server said, “Hi Robert, it’s Terry Herlihy, I have some more documents for you.” The debtor answered, “Come on up, Terry.” At the doorway, he was met by the debtor and served the debtor with further documents.
There was no question on either of those occasions that the person who identified himself to the process server, that is Robert Ridgeway, was concerned about the spelling of his name in the documents that he had been presented with. He certainly did not challenge the fact that he was the debtor referred to in those documents.
More recently, that is on 1 October 2010, Terry Herlihy attended again at the premises of the debtor to serve him with the application returnable today and further material. Again, as on the previous occasion, he rang the intercom. He asked, “Hello, is that Robert Ridgeway?” The person who responded replied, “Yes, it is.” The process server again stated, “Hi Robert, this is Terry Herlihy, I have some more Court documents for you.” The debtor responded, “Okay, come on up Terry.” The debtor again met him at the doorway and received the documents from the process server without challenge.
All of the documents which have been served upon the debtor to date identify the debtor as “Robert Ridgeway, R-i-d-g-e-w-a-y”. In fact, the correct spelling of the debtor’s name is in fact, Ridgway, spelt R-i-d-g-w-a-y. Thus the present difficulty.
The applicant creditor now seeks leave to amend the initiating proceedings to read “Robert Ridgway, also known as Robert Ridgeway”, that is R-i-d-g-e-w-a-y also known as Robert Ridgway, R-i-d-g-w-a-y. An order is also sought to amend the order which was made sequestrating him.
The issue in this case really concerns the order rather than the process itself. There is in no doubt in this case that the debtor is the person who has been identified as receiving the documents and who is now known to be Robert Ridgway, R-i-d-g-w-a-y not R-i-d-g-e-w-a-y. It seems on that basis that the appropriate course is merely to amend the sequestration order made on 25 August by Registrar Baldwin. The power to make such an amendment is found in order 35, rule 7(3) of the Federal Court Rules which apply by operation of this Court’s rules under rule 1.05(2) because this Court’s rules are insufficient and require modification for the purposes of determining this application.
While there has been some debate in the authorities about the circumstances in which the Court’s power under order 35, rule 7(3) ought to be exercised, the general principle was identified by Lord Denning in Pearlman (Veneers) S.A. (Pty) Ltd v Bernhard Bartels (1954) 1 WLR 1457, where his Lordship said:
“When the substantive judgment is not being altered but only the title of the action, it is, to my mind, quite plain that this Court has ample jurisdiction to correct any misnomer or misdescription at any time, whether before or after judgment.”
It is critical to note, that in this instance, the application is made to correct a misnomer after judgment. That also is entirely consistent with the views expressed by Lockhart J in Elyard Corporation Pty Limited v Ddb Needham Sydney Pty Ltd (1995) FCA 1685, where his Honour stated:
“… where the proposed amendment is one upon which no real difference of opinion can exist….”
It is appropriate that the slip rule be applied noting, however, that it would not apply:
“… where the amendment is a matter of controversy…”
Or where the mistake is:
“…the consequence of a deliberate decision...”
In this case, there is, undoubtedly, no controversy about or difference of opinion concerning the identity of the debtor. The debtor has been served on three occasions by the same process server. On each occasion, he has acknowledged himself to the process server as the person noted in the documents served upon him. On no occasion has he challenged receipt of the documents or identified himself as not being the appropriate recipient of those documents.
His conduct, in my view, speaks of his admission as to his identity as being one and the same as that of the person noted in the documents.
It follows that, having regard to those facts, there is no controversy about whether there has been a mistake in the spelling of his name which ought to now be rectified.
It follows that, in this case, it is an appropriate occasion to exercise the powers available under order 35, rule 7(3) to correct the error which presently exists in the judgment document to substitute the name Ridgeway, R-i-d-g-e-w-a-y with the name Ridgway, R-i-d-g-w-a-y. And I will make an order in those terms.
But in any event, I will make an order in terms of paragraph two of the application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date: 2 November 2010