Starr v William Goard and Associates

[2005] NSWSC 124

CITATION:	Starr v William Goard & Associates [2005] NSWSC 124 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23 February 2005
JUDGMENT DATE :	3 March 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Harrison
DECISION:	(1) The appeal is dismissed; (2) The order of Magistrate Still dated 3 August 2004 is affirmed; (3) The summons filed 25 August 2004 is dismissed. ; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS:

Appeal decision of Local Court Magistrate - amend plaintiff's name after default judgment

LEGISLATION CITED:

Local Courts (Civil Claims) Act 1970 (NSW) - s 69(2)
Local Court (Civil Claims) Rules 1988 (NSW) - Part 16

CASES CITED:

Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Devries v Australian National Railways ?Commission (1993) 177 CLR 472
RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446

PARTIES:

Michael Starr (Stoeski)
(Plaintiff)

William Goard & Associates
(Defendant)

FILE NUMBER(S):

SC 12774/2004

COUNSEL:

Ms K Leotta
(Defendant)

SOLICITORS:

Mr P Livers
Slattery Thompson
(Plaintiff)

Mr E Takchi
Takchi & Associates
(Defendant)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	760/1997
LOWER COURT JUDICIAL OFFICER :	Magistrate Still

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 3 MARCH 2005

12774/2004 - MICHAEL STARR (STOESKI) v
WILLIAM GOARD & ASSOCIATES

JUDGMENT (Appeal decision of Local Court Magistrate
- amend plaintiff’s name after default
judgment)

1 MASTER: By summons filed 25 August 2004 the plaintiff seeks an order that the decision made on 3 August 2004 by Local Court Magistrate Still be set aside. The plaintiff relied on two affidavits of Peter Livers sworn 3 September 2004 and 11 November 2004. The plaintiff is Michael Starr (Stoeski). The defendant is William Goard & Associates.

2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156 and two more recent cases, namely Carr v Neill [1999] NSWSC 1263 and R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082. It cannot be said that the Tribunal member acted on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588. Section 69(4) of the Act provides that the court may determine an appeal by either (a) setting the judgment or order aside or (b) by varying the terms of the judgment or order or (c) by setting the judgment or order aside and remitting the matter for determination in accordance with the court’s directions or (d) by dismissing the appeal.

3 Although the summons is in the wrong form, the plaintiff’s grounds of appeal are firstly that, on 3 August 2004, the Magistrate had no judicial power to amend the defendant’s name on its statement of claim; and secondly, that Part 16(10) of the Local Courts (Civil Claims) Rules 1988 (LCR) and the decision of Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, vests no judicial power to amend the defendant’s statement of claim.

Local Court proceedings

4 On 16 April 1997, William Goard & Associates (Goard) instituted legal proceedings for debt recovery in the Local Court at Burwood. On 2 October 1997, Goard obtained judgment against the plaintiff in those proceedings. On 20 July 2004, by way of a notice of motion, Goard sought to amend the defendant’s name to “S R P R Pty Ltd t/as William Goard & Associates”. On 3 of August 2004, Magistrate Still of the Local Court at Burwood, granted the plaintiff’s motion and amended the name of the defendant to “S R P R Pty Ltd t/as William Goard & Associates”.

5 William Goard (aff 13 July 2004) deposed that he was the registered owner of the business name William Goard and Associates. As at 1997, when these local court proceedings were commenced, S R P R Pty Ltd was the registered proprietor of William Goard and Associates. When Mr Goard commenced these proceedings he did so in the name of the business name and did not include the name of the company. After default judgment had been entered, Goard sought to amend the court file to reflect the correct name of the plaintiff, namely, S R P R Pty Ltd t/as William Goard and Associates. Starr opposed the orders being made on the basis, that the name sought to be pleaded, is in no shape or form, similar to the name that was originally pleaded, and that it is not an error that can be rectified.

6 In this appeal, Starr referred to Part 16 rr 1 and 10 of the LCR.

7 Part 16.1 of the LCR provides:

“General

(1) The court may, at any stage of any action, on application by any party or of its own motion, order that any document in the action be amended, or that any party have leave to amend any document in the action, in either case in such manner as the court thinks fit.

(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the action, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.

(3) Where there has been a mistake in the name of a party, subrule (1) applies to the person intended to be made a party as if the person were a party.

(3A) An order may be made, or leave may be granted, under subrule (1) notwithstanding that the effect of the amendment is, or would be, to add or substitute a cause of action arising after the commencement of the action, but in such a case the date of commencement of the action, so far as concerns that cause of action, shall, subject to rule 4, be the date on which the amendment is made.

(4) This rule does not apply to the amendment of a judgment order or certificate.”

8 As judgment had been entered, Part 16.1 does not apply.

9 Part 16.10 of the LCR provides:

“Judgment order or certificate

(1) Where there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.

(2) Rules 7, 8 and 9 do not apply to a correction made under subrule (1).

10 The Magistrate in his ex tempore reasons stated:

“…it’s just a procedural change relating to the corporation entity trading as another name, as I see it.”

11 Starr submitted that because the judgment was entered by default, these rules do not apply. Further, Starr submitted that Parts 16.1 and 16.10 do not apply. It is a judgment of the court whether it was obtained by default or after a defended hearing. I do not agree with this submission. According to Starr, William Goard & Associates and SRPR Pty Limited t/as William Goard & Associates are different entities so this error cannot be cured by describing it as an accidental slip. Goard contends that the description of its name was merely incomplete and an accidental error.

12 In Storey & Keers (per Priestley, McHugh and Clarke JJA), their Honours held that the Court has power to amend its judgment or order, if the judgment or order, as drawn up, fails to express correctly the intention of the Court at the time the judgment or order was pronounced.

13 It is my view that naming the plaintiff as William Goard & Associates is describing only part of the plaintiff’s identity and not describing it by its full name, SRPR Pty Limited t/as William Goard & Associates. As such, it was open to the Magistrate to characterise it as an accidental omission. Thus the plaintiff’s name was capable of being rectified after judgment in accordance with Part 16 Rule 10 of the LCR.

14 It is debatable whether Starr needed to seek leave under s 69(2)(b) of the Local Courts (Civil Claims) Act as it is arguable that the decision being appealed against is an interlocutory one. But there are a number of more important points that need to be made. Starr has never put in issue that he did not owe that money to the plaintiff as described in the statement of claim. The motion to change Goard’s name was listed to be heard at the same time as Starr’s notice of motion to set aside the default judgment. Starr’s legal representative was not ready to proceed with its motion. So the Magistrate dealt with Goard’s motion. After the Magistrate made the order correcting the name, Starr’s notice of motion to have the default judgment set aside was determined. Starr was successful in having the default judgment set aside. The Local Court proceedings are currently on foot. The defendant has been allowed in to defend these proceedings and the matter is currently listed for arbitration.

15 It is my view that there was no error of law and even if there were, I would not exercise my discretion to interfere with the magistrate’s decision in the light of subsequent events. It would not be in the interest of justice to do so, particularly as the Local Court proceedings currently stand, the defendant can ventilate the issues he wishes to raise in his defence.

16 The appeal is dismissed. The order of Magistrate Still dated 3 August 2004 is affirmed. The summons filed 25 August 2004 is dismissed.

17 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed.

Orders

(1) The appeal is dismissed.

(2) The order of Magistrate Still dated 3 August 2004 is affirmed.

(3) The summons filed 25 August 2004 is dismissed.

(4) The plaintiff is to pay the defendant’s costs as agreed or assessed.
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07/11/2005	-	Name of solicitor for defendant amended - Paragraph(s) Cover Sheet
07/11/2005	-	Furth amended to solicitor for defendant - Paragraph(s) Coversheet
08/11/2005	-	- Paragraph(s)