2.2: Actions by or against partners and partnerships
2.5: Actions by and against sole proprietors
11.13: Service on a corporation using another name
13.18: Types of affidavit

Case Summary

Two procedural issues arose in the context of an Application by the Representative Plaintiff for Certification of a Class Action.

First, one of the Defendants argued that it was not a legal entity and ought not to be the subject of the Class Action, if certified. The Court found that this Defendant was merely a tradename used by the two other corporate Defendants. Justice Neilson stated that Rules 2.2 and 2.5 allow a partnership or sole proprietorship to sue or be sued in the name of a tradename. His Lordship also noted that Rule 11.13 provides for service upon a corporation carrying on a business or operating by a name other than its own. The Court therefore ordered that the Style of Cause be amended to include only the two corporate Defendants, followed by reference to their operation under the tradename Defendant.

Next, the Defendants objected to Affidavit evidence which was brought in relation to the common issues identified by the proposed Class. The Defendant argued that such evidence was hearsay which was obtained from the records of non-parties. The Court held that Rule 13.18 provided for the admissibility of Affidavit evidence based on information and belief on procedural interlocutory Applications, and so accepted the evidence.

In the result, Justice Neilson granted the Certification Application.

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