Marlin Brands Australia Ltd v Brando Aus Holdco Pty Ltd

[2022] NSWCA 59

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Interlocutory decision
3. › Leave to appeal
4. › Joinder of additional defendants back-dated to commencement of proceedings
5. › Whether outcome of appeal would prevent trial
6. › Whether issue might not arise at trial
7. › Whether point available as of right after final judgment
8. › Leave refused
1. Practice and Procedure
2. › Amendment of originating process after expiry of limitation period
3. › Correction of mistake in name of party
4. › Whether joinder of agent instead of principal constituted 'mistake in the name of a party'
5. › Civil Procedure Act 2005 (NSW), s 65(2)(b)
1. Practice and Procedure
2. › Amendment of documents generally
3. › Whether general power of amendment in s 64 provides alternative basis for back-dating joinder after limitation period expired
4. › Relationship between ss 64 and 65
5. › Civil Procedure Act 2005 (NSW), ss 64, 65

Quick Take

Commencing proceedings near the expiry of a contractual limitation period requires individually naming all intended defendants rather than relying on representative proceedings, as joinder of an agent or representative instead of the principal may not constitute a 'mistake in the name of a party' under s 65(2)(b) CPA.