Moulieux Pty Limited v Girvan NSW Pty Limited (Receiver and Manager Appointed)

This matter concerns an application for special leave to appeal to the High Court of Australia by Moulieux Pty Limited against a decision of the New South Wales Court of Appeal. The dispute originated from a decision of a single judge of the Supreme Court of New South Wales, which was subsequently appealed to the Court of Appeal. The Court of Appeal refused leave to extend the time for an appeal from the primary judge's decision.

The legal issues before the High Court revolved around three principal areas. Firstly, the distinction between a "misnomer" and "mistaken identity" in legal proceedings, and how this distinction impacts the ability to amend originating process. Secondly, the extent to which an appellate court should inquire into the merits of an appeal when considering an application for an extension of time. Thirdly, the circumstances under which an appellate court may determine an application based on an issue not initially raised or anticipated by the parties.

The applicant argued that the Court of Appeal, like the trial judge, had erred in its application of the law concerning misnomer and mistaken identity. Specifically, the applicant contended that the courts below had presumed that the test for misnomer, as established in cases like *Robertson*, provided a definitive answer to the distinction between misnomer and mistaken identity, without adequately considering the alternative hypothesis of mistaken identity. The applicant sought to argue that the courts had proceeded on a mistaken view of the law regarding this distinction, particularly in assuming that the respondent had always intended to sue the party with whom it had contracted, merely misnaming it.

The application for special leave to appeal was heard by Mason CJ, Toohey J, and Gaudron J. The applicant sought the opportunity to appeal on the principle of law governing the distinction between misnomer and mistaken identity, rather than seeking the High Court to determine the underlying questions of fact.