Juric v National Australia Bank Limited
[2000] VSC 198
•26 May 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 5409 of 1999
| SIME JURIC | Plaintiff |
| v. | |
| NATIONAL AUSTRALIA BANK LIMITED | Defendant |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 MAY 2000 | |
DATE OF JUDGMENT: | 26 MAY 2000 | |
CASE MAY BE CITED AS: | JURIC v. NATIONAL AUSTRALIA BANK LTD. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 198 | |
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CATCHWORDS: Practice and Procedure – Amendment – Substitution of name of party – Ambit of rule – Application to substitute company for individual – Supreme Court Rules 9.06, 36.01.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. M. Wise | Home Wilkinson Lowry |
| For the Defendant | Mr. A. Schlicht | Russell Kennedy |
HIS HONOUR:
This is an appeal from the order of Master Evans made on 30 March 2000 whereby the Master dismissed the plaintiff's application made pursuant to Rule 36.01 of the Supreme Court Rules for leave to amend the name of the plaintiff to the proceeding from Sime Juric to Dalm Nominee Pty. Ltd. (the company). I also have before me an application by the defendant for summary judgment.
By writ filed in the Court on 12 May 1999 the plaintiff claims damages from the defendant the National Australia Bank Limited (NAB) arising from the sale by NAB as mortgagee of two properties at 9 Rudduck Street, Dandenong and 17 Rudduck Street, Dandenong respectively (the properties).
By his indorsement of claim the plaintiff alleges that he was the registered proprietor of the properties, that NAB as mortgagee sold them on or about 25 May 1993 and that in doing so it did not act in good faith and have regard to the plaintiff's interests in that it sold them for a sum less than their true value.
By its defence filed in the Court on 8 June 1999 NAB denies that it acted in breach of any duty it owed to the plaintiff and pleads that the plaintiff has no cause of action against NAB because the registered proprietor and mortgagor of the properties was not the plaintiff but the company.
The fact is that at all times material the company was the registered proprietor and mortgagor of the properties, not the plaintiff.
In December 1999 there was an unsuccessful mediation of the proceeding.
By summons filed in the Court on 14 February 2000 NAB sought to summarily dismiss the proceeding pursuant to Rule 23.01 of the Rules on the ground that it did not disclose a cause of action, was scandalous frivolous or vexatious and was an abuse of the process of the Court.
On 1 March 2000 the plaintiff filed a summons in the Court whereby he sought an order pursuant to Rule 36.01 of the Rules for leave to amend the title to the proceeding to read "Dalm Nominee Pty. Ltd." in lieu of "Sime Juric".
The relevant sub-rules of Rule 36.01 read:
"(1)For the purpose of determining the real question in controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.
(2)In this Order 'document' includes originating process, an indorsement of claim on originating process and a pleading.
…
(4)A mistake in the name of a party may be corrected under paragraph (1), whether or not the effect is to substitute another person as a party.
(5)Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced.
(6)The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.
(7)For the purpose of paragraph (6) 'any other party to the proceeding' includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party."
The summonses came before the Master on 30 March.
The Master dismissed the plaintiff's summons then adjourned the further hearing of NAB's summons to 14 April 2000 to enable the plaintiff to file further affidavit material in relation to the application. The adjournment became necessary because the plaintiff's counsel had agued before the Master that although the plaintiff did not have a cause of action against NAB as mortgagor, he had a cause of action against it as guarantor and/or for breach of trust. As there was no affidavit material before the Court to support such contentions the Master adjourned the further hearing of the application to give the plaintiff an opportunity to attend to the matter. No such affidavit material has ever been filed in the Court.
By notice of appeal filed in the Court on 4 April 2000 the plaintiff appealed against the Master's order dismissing this summons.
When the matter came back before the Master on 14 April the Master determined that the further hearing of NAB's summons should be referred to the Judge in the Practice Court and heard at the same time as the plaintiff's appeal.
The appeal and summons ultimately came before me on 11 May 2000.
At the commencement of the hearing of the appeal and summons I granted to the plaintiff special leave to rely upon an affidavit of the plaintiff sworn 10 May 2000.
The affidavit provided an explanation by the plaintiff for bringing the proceeding in his own name rather than that of the company. In the circumstances I considered that it was in the interests of justice that the Court be aware of that explanation.
The affidavit so far as is relevant reads:
"I refer to my Affidavit sworn 29 February 2000 and specifically paragraph 36 thereof."
Paragraphs 35 and 36 of the affidavit of 29 February read:
"35.On 12 May 1999 I attempted to file in the Prothonotary's Office of the Supreme Court of Victoria a Writ in the name of Dalm Nominee Pty. Ltd. as Plaintiff, against National Australia Bank Limited, as Defendant, together with an indorsement of claim in a form which had been drafted by counsel. I was advised by an officer of the Prothonotary that I could not issue proceedings on behalf of Dalm Nominee as Dalm Nominee was not represented by a solicitor and that I should issue the proceedings in my name alone.
36.As a result of the advice I received from the office of the Prothonotary I caused the proceedings herein to be issued in the form in which they now stand. I caused the name of Dalm Nominee to be substituted for my name in the mistaken belief that either I or Dalm Nominee could issue proceedings against the NAB arising out of the sale of the Rudduck Street properties at an undervaluation by the NAB."
"3.Now produced and shown to me and marked with the letters 'SJ11' is the original Writ in the name of Dalm Nominee Pty Ltd. which the Prothonotary refused to allow me to file.
4.On 12 May 1999, after the Prothonotary rejected the Writ which named Dalm Nominee Pty. Ltd. as Plaintiff and told me that I could commence the Writ in my own name, I returned to my solicitors, Pryles & Defteros' office and explained that I could not file this Writ on behalf of Dalm Nominee as the company was not represented by a solicitor.
5.I was advised by Pryles & Defteros that the situation could be rectified if Sime Juric was named as the Plaintiff in place of Dalm Nominee.
6.As my solicitors Pryles & Defteros were unable to act on my behalf due to there being insufficient funds in its trust account, they then amended the name of the Plaintiff in the original Writ to that of Sime Juric and gave it to me to file with the Prothonotary.
7. I then proceeded to file the Writ in the name of Sime Juric."
It is clear from the decision of the High Court in Bridge Shipping Pty. Ltd. v. Grand Shipping SA and Another[1] that an application can only be made to the Court pursuant to Rule 36.01 where there has been a mistake made in the name of a party. The rule does not permit a litigant to substitute a different plaintiff for an existing plaintiff.
[1]103 A.L.R. 607
That much is clear from the following passage in the judgment of Dawson, J. at p.614:
"No doubt a plaintiff ordinarily sues because he believes he has a claim and a defendant is sued because the plaintiff believes that he is the person liable. If the claim lies in someone else or if the defendant is not liable but someone else is, that does not convert the mistake into a mistake in the name of the party joined. It is not a question of giving the rule a narrow or a wide construction. Giving the rule its widest construction, the question remains whether there was a mistake in name, not a mistake in the joinder of a particular party for some other reason."
Later at p.615 his Honour said:
"If … the effect of the amendment would be, not to correct the name of the party, but to alter the identity of the party, then that rule (Rule 36.01(4)) does not apply."
In the present case the plaintiff made no mistake in issuing the writ in his name when he returned to the office of the Prothonotary on the second occasion; that is what he intended to do and that is what he did. As he swore in paragraph 36 of his affidavit of 29 February 2000 – he believed that either he or the company could issue proceedings against NAB arising out of the sale of the properties.
And so this is not a mistake in the name of a party, it is a mistake in suing in the name of the plaintiff rather than the name of the company.
When a person wishes to substitute a party for an existing party the application should be made under Rule 9.06. That rule reads:
"9.06 Addition, removal, substitution of party
At any stage of a proceeding the Court may order that –
(a)any person who is not a proper or necessary party, whether or not he was one originally, cease to be a party;
(b) any of the following persons be added as a party, namely –
(i)a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
(ii)a person between whom and any party to the proceeding there may exist a question arising out of or relating to or connected with any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;
(c)a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies."
However, there would be no point in permitting the plaintiff to amend his summons so that his application became an application under Rule 9.06 because any claim the company may have had against NAB is statute barred.
The point was made by Dawson, J. in Bridge Shipping at p.608 where his Honour said:
"Were it not for the expiry of the limitation period, Bridge Shipping could have applied under r.9.06 of Ch 1 of the Rules of the Supreme Court of Victoria for the substitution of Rainbow Line for Grand Shipping as a third party. That rule provides for the substitution of a person who ought to have been joined as a party for a person who is not a proper or necessary party. But under r.9.11(3)(a) the proceeding against Rainbow Line would have been deemed to have been commenced at the time of amendment of the filed originating process and a defence would have been available to Rainbow Line under the Hague Rules. In those circumstances, any application for the substitution of Rainbow Line for Grand Shipping is likely to have been refused because it would have been futile in the light of the defence available to Rainbow Line."
The plaintiff's appeal is dismissed with costs.
As to NAB's summons for summary judgment it is clear that the plaintiff has no cause of action and the proceeding as such will be dismissed.
I order that the plaintiff pay the defendant's costs of the proceeding including reserved costs and the costs of this appeal.
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