The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu

[2017] NSWSC 1658

Supreme Court

New South Wales

Medium Neutral Citation:	The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2017] NSWSC 1658
Hearing dates:	22 September 2017
Decision date:	22 September 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Pursuant to s 64 of the Civil Procedure Act 2005 (NSW) plaintiffs granted leave to file an amended statement of claim in the form annexed the notice of motion; costs of the application to be each party’s costs in the cause
Catchwords:	CIVIL PROCEDURE – application for leave to file amended statement of claim to correct name of defendant – where limitation period expired after filing of originating process – whether the mistake in the name of the defendant was misleading
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 65(2) Defamation Act 2005 (NSW), s 9
Category:	Procedural and other rulings
Parties:	The Sydney Cosmetic Specialist Clinic Pty Ltd (first plaintiff) Dr Siew Yi Lee (second plaintiff) Richard Hu (“Yiwen Hu”) (first defendant) Valgrow Pty Ltd (trading as LJ Hooker Burwood) (second defendant) Lijue Ma (third defendant) Erica Chen Cheng (fourth defendant)
Representation:	Counsel: C Hamilton-Jewel (plaintiffs) P Chu (first defendant) S Bird (second defendant)   Solicitors: MLH Lawyers Pty Ltd (plaintiffs) AHL Legal (defendants)
File Number(s):	2017/180689
Publication restriction:	None

Judgment

1. HER HONOUR: These are proceedings for defamation commenced by a company called the Sydney Cosmetic Specialist Clinic Pty Ltd (which, according to the matters averred in the pleading, is an excluded corporation for the purposes of s 9 of the Defamation Act 2005 (NSW)) and an individual, Dr Siew Yi Lee.

2. The proceedings arise out of a series of posts made in the course of a discussion in a WeChat group allegedly established by the entity that controls LJ Hooker (Burwood).

3. The proceedings were commenced by statement of claim filed on 16 June 2017. The matters complained of are alleged to have been published on 18 to 19 June 2016. The limitation period for defamation being one year, it follows that the period within which proceedings were allowed to be commenced expired within days after the filing of the original pleading.

4. The statement of claim makes plain from the description of the second defendant on the last page of the pleading that the plaintiffs intended to sue the entity trading as LJ Hooker (Burwood).

5. In response to service of the statement of claim, the plaintiff's solicitor received a letter from a firm of solicitors stating that they represented Valgrow Pty Ltd, the entity named in the original statement of claim as the second defendant. The letter said:

I confirm that Valgrow Pty Ltd does not control nor operate nor trade as LJ Hooker (Burwood). As I mentioned to you the correct entity is Valgrow 1 Pty Limited.

6. An ACN number was identified. The letter further urged the plaintiffs to consider whether or not it was appropriate for an action to be commenced against Valgrow 1 Pty Limited saying:

In my view your client cannot substantiate any claim against Valgrow 1 Pty Limited.

7. The letter concluded with a statement that both entities reserved their rights and in particular their right to seek costs. It was noted that "they" intend to tender this letter in support of any application in relation to costs. Plainly the letter, although not prefaced with an assertion that the author acted for Valgrow 1 Pty Limited, was written on instructions from both entities.

8. The plaintiffs have responded by moving by notice of motion filed in Court today for leave to file an amended statement of claim naming Valgrow 1 Pty Limited as second defendant. The application is opposed by Valgrow 1 Pty Limited.

9. The limitation period, of course, expired between the date on which the statement of claim was filed and the date on which the letter from the firm of solicitors was written identifying the error.

10. Section 65(2) of the Civil Procedure Act2005 (NSW) confers authority on the Court at any time after the expiration of the relevant limitation period to grant leave to a plaintiff to amend the originating process so as to correct a mistake in the name of a party whether or not the effect of the amendment is to substitute a new party:

…being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party…

11. Ms Bird, who appears for Valgrow 1 Pty Limited in opposing the application, today submitted that the plaintiffs’ solicitor could, by proper enquiry, have ascertained the identity of the correct entity trading as LJ Hooker (Burwood). So much may be accepted by the material exhibited to the affidavit relied upon by the plaintiffs in support of today's application.

12. It must, however, be accepted that the position is obscure. The change of entity may have coincided with a change in the law requiring companies to trade under a business name rather than a trading name.

13. An “ABN look-up” conducted on the Australian Business Register provides, as current details for a particular ABN number, the entity name Valgrow Pty Ltd and the trading name LJ Hooker (Burwood) as the trading name applicable from 6 April 2000 with no end date.

14. If one clicks through to further pages, it becomes clear that the business name LJ Hooker (Burwood) was connected to Valgrow Pty Ltd from 6 April 2000 with an end date of 30 August 2014 and that the trading name commenced from the same date but with no end date. The mistake could have been identified from that material, which identifies the business name LJ Hooker (Burwood) as being connected to Valgrow 1 Pty Limited from 30 July 2014 with no end date.

15. In my respectful opinion, however, to consider whether the mistake could, by more diligent searches, have been avoided is to apply a wrong test. The wording of s 65(2)(b) is clear. If the Court is of the opinion that there was a mistake which was neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party the Court has authority to allow the amendment.

16. In the present case, while the mistake might have been identified through a more diligent process of search, it is plain from the terms of the original statement of claim and from the terms of the letter of 12 July 2017 identifying the error, written by a solicitor evidently acting for both entities, that the mistake did not mislead Valgrow 1 Pty Limited, nor was it such as to cause any doubt that what was intended was to sue whichever entity had current operation of LJ Hooker (Burwood).

17. In all the circumstances I consider it appropriate to grant leave to file an amended statement of claim in the form annexed to the notice of motion.

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Decision last updated: 07 December 2017