National Australia Bank Ltd v Green-Hansen

[2012] QDC 331

[2012] QDC 331

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2189 of 2012

NATIONAL AUSTRALIA BANK LIMITED

Plaintiff

and

MARYILYN JOY GREEN-HANSEN

and

THE VIEW TRUST STREET

and

ANTHONY CHRISTOPHER HANSEN

First Defendant

Trustee

Second Defendant

BRISBANE

..DATE 18/10/2012

..DAY 1

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 375(3)

Amendment to default judgement to remove an extra letter appearing in the defendant's first name in the title of the proceeding
HIS HONOUR:  The court makes an order in terms of the initialled draft.  Pursuant to rule 375(3), it directs that a default judgment dated the 27th of August 2012 be amended by changing the first name of the first defendant to "Marilyn".

In the proceeding to date, because of what's plainly a typing error, that name appeared as "Maryilyn".

The correct spelling of the name appears in other places, such as a title search and, indeed, in the loan facility agreement documents, which the lady in question has signed.

Intriguingly, in a mortgage document, also apparently signed by her, it appears as "Marilyne", although, at some point, the unnecessary "e" at the end has been deleted.  That document was witnessed by a solicitor, Mr Barbi, a detail worth mentioning because he agreed to accept service of the claim and statement of claim for the defendants.  His signed endorsement acknowledging that service appears in the process server's affidavit of service.

Difficulties are apprehended in the future enforcement of the default judgment, which is for a sum close to the monetary limit of the court's jurisdiction, and perhaps, in particular, if issuing a bankruptcy notice becomes necessary.

The application has been served on the defendants at their last known addresses, and also on Mr Barbi.  Neither has appeared today, upon their being called by the bailiff.

I have been provided with an outline of submissions collecting well‑known authorities dealing with misnomers as referred to in rule 375(3). They begin with Davies v. Elsby Brothers Limited [1961] 1 WLR 170 at 176; and go on to A & M Short Pty Ltd v. Prestige Residential Marketing Pty Ltd (2005) 194 FLR 32, where the plaintiff applied to amend the "A" in its name to "Q"; and Bridge Shipping Pty Ltd v. Grand Shipping SA [1991] 173 CLR 231 at 245.

Of greater interest, perhaps, is the Court of Appeal's ruling in Wright v. Keenfilly Pty Ltd [2007] QCA 148, because it concerns the amendment of a judgment. In paragraph 15, one reads, "UCPR rule 375(3) requires the court to allow or direct the amendments necessary to correct a misnomer of a party. It is appropriate that the amendment be made to avoid complications with enforcement. It is directed that the judgment of the Court be amended by deleting 'where Import Export Co Pty Ltd' and inserting in lieu thereof, wherever it appears, ‘Keenfilly Pty Ltd'."

From some points of view this seems such a minor matter that one wonders whether the present application to the court was necessary.  However, I should respect the reasons given for its being brought which, as has been seen, find support in the Court of Appeal.

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