Anthony Leslie John Woodings (as Receiver and Manager of Elcos Australia Pty Ltd (in Liq)) v Jay a Stevenson and Philip G Jefferson (as Liquidators of Elcos Australia Pty Ltd (in Liq))

(2001) 24 WAR 221; [2001] WASC 174

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Practice and procedure - Addition and removal of parties - Receiver named as plaintiff but cause of action lying with appointing creditor - Whether creditor could be substituted for receiver

Quick Take

The Court held that O 18 r 6(2) of the Rules of the Supreme Court (WA), read with O 18 r 8(4), confers power to substitute a party as plaintiff, not merely to add parties, departing from the earlier District Court decision in Elliott v Williams. Where a receiver was wrongly named as plaintiff but the cause of action lay with the appointing secured creditor, the creditor could be substituted as plaintiff. However, the rule does not apply where the proceedings are a nullity (e.g. commenced by a dissolved company), and Owen J expressed grave doubts whether the rule would permit substitution after expiry of a relevant limitation period given the silence of the WA rules on that point.