Who Are You Actually Suing? A Lesson in Naming and Serving the Right Party

When a dispute heads to court, most people focus on the merits: who is right, what was done, and what it cost. But before any of that matters, there is a deceptively simple question that trips up litigants again and again exactly who are you suing, and have you properly delivered your court documents to them? Get the name wrong, or serve the wrong person, and even a strong case can stall, blow out in cost, or fail at the threshold.

A recent decision of the District Court of New South Wales, Wang v Lo [2025] NSWDC 413, is a clear illustration of how much work it can take to pin down the right defendant when a business trades under a name that belongs to no one in particular and why getting it right at the start saves enormous trouble later.

People are sued, not “businesses”

A fundamental rule of litigation in New South Wales is that proceedings run between legal persons. A legal person is a human being or a company (which the law treats as an artificial person). A trading name, the name on the shopfront, is not a legal person and cannot, by itself, sue or be sued. Rule 7.19 of the Uniform Civil Procedure Rules 2005 (NSW) puts it directly: people are to sue and be sued in their own names, not under a business name.

The rules do make a practical concession. Where a business trades under an unregistered business name, rule 7.20 lets a plaintiff start proceedings against “that person” using the business name as a placeholder, and a judgment can then be enforced against the actual person behind it. But that is only a starting point. Rule 7.22 requires the plaintiff to take reasonable steps to find out the real name and address of the defendant and to amend the documents so the case can continue against that person in their own name. Until that is done, the plaintiff generally cannot take further steps in the proceedings without the court’s leave.

Service - the formal delivery of the originating documents - is the other half of the equation. A defendant is entitled to know they are being sued. For an unregistered business name, rule 10.9 allows service by leaving the documents with someone apparently engaged in the business, or by posting them to the business premises, with the documents treated as served seven days after posting.

The facts: a duct, a tofu shop, and a name that belonged to no one

The plaintiffs owned a lot in a Hurstville strata building. They alleged that the owners of a neighbouring ground-floor lot had installed an exhaust system whose ducting intruded into their property and that the business operating from the neighbouring shop, trading as “Tofu King", was committing a continuing trespass and nuisance by its ongoing use of the ducts. They sued three defendants: the two lot owners and “Tofu King” as the third defendant.

The problem was that “Tofu King” was an unregistered business name. It was not a company, not a person, just a sign over a shop. When the plaintiffs tried to work out who actually stood behind it, the picture was murky. An ASIC search showed a cancelled ABN and a vague Melbourne address. Nobody filed a defence on behalf of Tofu King. The plaintiffs’ solicitor had to do real detective work: searching ASIC, writing to the strata manager, issuing subpoenas, writing to the “occupier” of the shop, and even buying a drink from the shop to obtain a tax invoice with identifying details.

Eventually two candidates emerged. Mr Ting Ting Wu was the lessee of the shop. And a company, Auslong Enterprises Pty Ltd, of which Mr Wu was the sole director and shareholder, turned out to own the Tofu King business (it held the trademark and paid the expenses). In other words, the “person” behind the shopfront was really two legal persons: an individual tenant and a company.

Matters were further complicated by what happened around service. The plaintiffs posted the statement of claim to the shop, and lawyers briefly came on the record for “Tofu King” before withdrawing. When Mr Wu later appeared in court with an interpreter, he said he had never seen the statement of claim and asked not to be contacted, yet he had plainly engaged solicitors who had received the documents.

The issues and the arguments

By the time the plaintiffs brought a motion to fix the problem, several questions had crystallised. Had “Tofu King” actually been served? Who were the real legal persons behind the name – Mr Wu, the company, or both? And could the court let the plaintiffs correct the proceedings, given that they had pressed on (including running much of a trial) without first amending the documents to name the true defendants, as rule 7.22 requires?

The plaintiffs argued that service had been validly effected by post and again when the documents were given to the solicitors who briefly acted and that both Mr Wu and Auslong were “persons” behind the Tofu King business who could be substituted in. Tofu King’s representatives accepted that service had been effected and conceded that Auslong owned the business and that Mr Wu was the lessee but argued that the company alone (not Mr Wu personally) was the proper defendant and that the plaintiffs had failed to amend the statement of claim as the rules required.

The Court’s decision

Judge Cole worked through each question. On service, the Court accepted that Tofu King had been validly served by post (deemed served seven days later) and again when the documents were provided to the solicitors then acting. Notably, the Court found that whether or not Mr Wu had personally read the statement of claim, the business had clearly been served and Mr Wu was clearly aware of the proceedings. The acknowledgement by Tofu King’s own lawyers that service had been effected mattered: the issue was never whether Mr Wu subjectively understood but whether service complied with the rules.

On who the proper defendants were, the Court rejected the plaintiffs’ attempt to characterise Tofu King as an “agent” of the lot owners that had not been properly pleaded. But it found that both Mr Wu and Auslong were persons who had done something “in the course of, or in relation to” the Tofu King business: Mr Wu as the lessee and sole decision-maker and Auslong as the company that owned the business, held its trademark, and benefited from the continuing use of the ducting. Both, therefore, could properly be brought in.

On the plaintiffs’ breach of rule 7.22 – having taken steps before amending to name the real defendants – the Court was understanding. It accepted that the relationship between Tofu King, Mr Wu and Auslong was genuinely unclear to the plaintiffs until late in the piece and that it had not been practical to amend earlier. Using its power under section 14 of the Civil Procedure Act 2005 (NSW) to dispense with a procedural requirement, it waived the rule and gave the plaintiffs leave to amend the statement of claim to substitute Mr Wu and Auslong for “Tofu King”. The amended claim was to be served on Tofu King’s solicitor, and the matter relisted.

The plaintiffs got there in the end but only after months of hearings, multiple subpoenas, and a contested motion to clean up a problem that, with the right information at the outset, need never have arisen.

The lessons: know your party, and serve them properly

For any business owner or individual contemplating or facing litigation, Wang v Lo is a practical checklist.

Identify the real legal person before you start. A shopfront name, a logo or a trade mark is not who you sue. Behind every “business” is a person or a company and often a confusing mix of both, as here, where the tenant was an individual but the business was owned by his company. A few searches at the outset (ASIC company and business name searches, a title or lease check, the strata roll) can reveal whether you are dealing with a sole trader, a partnership, a company, or a trust, and who is actually liable.

Beware unregistered business names. The rules let you start a case against an unregistered trading name, but they then put the burden on you to find and name the real defendant. That detective work, subpoenas, correspondence, even a test purchase costs time and money. Doing the homework first is almost always cheaper.

Distinguish the company from the individual. Suing the wrong one of the two can be fatal. A director is generally not personally liable for the company’s conduct merely because they own and run it. Whether you should pursue the individual, the company, or both depends on who did what and on the wording of leases, contracts and pleadings.

Plead your case properly. The plaintiffs’ “agency” argument failed because it was never properly pleaded with particulars. A claim must spell out who did what so the other side knows the case they have to meet.

Serve strictly in accordance with the rules. Service is not a formality. Valid service is what gives the court power to deal with a defendant and to enforce a judgment. The rules set out exactly how it must be done by post, by leaving documents at the premises, or on a solicitor with instructions, and a defendant claiming “I never saw it” will not necessarily defeat service that complied with the rules. Equally, sloppy service can hand the other side a way out.

Get the foundations right at the start. Almost every difficulty in this case flowed from uncertainty about who the third defendant really was. The merits were never reached at this stage; the entire contest was about names and service.

How Shire Legal can help

Whether you are chasing a debt, defending a claim, or enforcing your rights against a neighbouring business, the unglamorous groundwork – identifying the correct legal entity and serving it properly – is what makes a claim work. At Shire Legal, we help clients across the Sutherland Shire and beyond to identify the right parties, conduct the necessary searches, plead claims correctly and effect valid service so that disputes are run efficiently and judgments can actually be enforced.

If you would like advice tailored to your situation, contact Shire Legal or book an appointment to speak with our team.

This blog provides general information and should not be construed as legal advice. Laws may have changed since the publication of this content. We recommend consulting with a qualified legal professional to ensure compliance with current legislation and to address specific circumstances.