In the matter of RCG CBD Pty Ltd

RCG CBD Pty Ltd, the liquidator of a company, applied to substitute a defendant in winding up proceedings, arguing that the original defendant was a misnomer. The application was made under section 65 of the Civil Procedure Act 2005 (NSW). The central issue was whether the provisions of section 65 applied, and if so, whether there was a mistake that constituted a misnomer.

The court examined whether there was a mistake in the identity of the defendant that warranted substitution under section 65. The liquidator argued that there was a misnomer as the original defendant did not match the person the liquidator intended to sue. However, the court noted that there was no testimonial evidence from the liquidator regarding who they intended to sue or the characteristics of that person. The court held that, based on the available evidence, there was no mistake of misnomer.

As there was no evidence to support a finding of misnomer, the court dismissed the application for substitution of the defendant. The decision underscores the importance of providing clear and sufficient evidence to substantiate claims of misnomer in legal proceedings.

The final order was that the application for substitution of the defendant was dismissed. The court found that the evidence did not support a finding that the original defendant was a misnomer.