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Mitry v Business Australia Capital Finance Pty Ltd (in liquidation) [2010] NSWCA 360

by Hilary Kincaid 17. January 2011 09:46


Proceedings were commenced by the liquidator on behalf of the Respondent to recover money under a loan agreement. Leave was granted to amend the plaintiff’s name to the company name.


The Applicant cross claimed under an agreement seeking commission for introducing borrowers or investors.


After the Applicant’s introduction and Respondent’s loan offers, a company related to the Respondent made loan advances.



The Applicant was entitled to commission. The advances were made due to a relationship between the Respondent and the borrower which flowed from the Applicant’s introduction. Key factors included:

  • Knowledge by the relevant parties of the introduction: [25].
  • The short time frame between the introduction and the loan: [28].
  • Contract language suggested the right to commission was not confined to the loan discussed at the introduction.
  • A relationship should be inferred due to lack of evidence led by liquidator to explain the relationship: [29].

The Liquidator sued on behalf of the Respondent but failed to bring the action in the name of the company as required by s 477(2)(a). Section 65(2)(b) contemplates such a mistake in the name of the party: [43].


The remedial rule should be given a beneficial interpretation: [45].


Even if the mistake was as to the entity that the right of action was vested in, this does not mean that a mistake in the name of the plaintiff had not been made: [48].


Leave to amend plaintiff’s name was provided.


Relevant paragraphs of Ford

[27.171], [27.200]


Ford's Principles of Corporations Law


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