Treadtel International Pty Ltd v Cocco

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Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Treadtel International Pty Ltd v Cocco [2016] NSWCA 360
Hearing dates:28 November 2016
Decision date: 16 December 2016
Before: Gleeson JA at [1]
Leeming JA at [8]
Barrett AJA at [9]
Decision:

(1)   Grant leave to appeal.
(2)   Direct that a notice of appeal in the form of the draft notice of appeal in the white folder be filed within seven days.
(3)   Appeal allowed.
(4)   Set aside Order 1 made in the Equity Division on 8 September 2016 and order in lieu that the plaintiff have leave to file an amended statement of claim in the form annexed to the orders of 8 September 2016 and marked “A” but with the following omitted therefrom:
(a)   Paras 1, 1A, 8, 9, 10 and 11 of the relief claimed; and
(b)   Paras 98E and 98 to 108 inclusive of the pleading and particulars.
(5)   Order, in addition to the orders for costs made in the Equity Division on 8 September 2016, as follows:
“That the plaintiff pay the costs of the first defendant of and incidental to the plaintiff’s interlocutory process filed on 9 October 2015 (including any amendment thereto) up to and including 8 September 2016.”
(6)   That the respondent pay the appellants’ costs of the summons seeking leave to appeal and of the appeal.

Catchwords:

CORPORATIONS - winding up - application on grounds other than insolvency - standing – classes of person who can apply for a winding up order – s 462(2)(b) Corporations Act 2001 (Cth) – creditors including contingent or prospective creditors - where plaintiff denies any enforceable agreement with company but alternatively claims unliquidated damages against the company for breach of denied agreement - where basis for such claim disputed – whether plaintiff should be permitted to seek winding up order in same proceedings in which damages claim is made

 

CORPORATIONS - winding up - application on grounds other than insolvency – s 462(2)(c) Corporations Act – standing as a contributory – where plaintiff not registered holder of shares – claim for rectification of register to record plaintiff as holder of share – whether plaintiff should be permitted to seek winding up order in same proceedings as claim for rectification of register

CORPORATIONS - oppression and unfair prejudice – application for relief on basis of oppression – s 234 Corporations Act – standing as a member – where plaintiff asserts beneficial ownership of share in company – claim for rectification of register to record plaintiff as member – whether plaintiff should be permitted to seek relief in case of oppression in same proceedings as claim for rectification of register
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56(1), 57, 58, 64(2)
Companies Act 1961 (NSW), s 221
Companies Act 1961 (Vic), s 220
Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 (Cth)
Conveyancing Act 1919 (NSW), s 12
Corporations Act 2001 (Cth), ss 9, 175, 231, 232, 233, 234, 235, 461, 462,…
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Details
Case
[2016] NSWCA 360
Decision Date

CaseChat Overview and Summary

The appeal before the Court of Appeal of New South Wales, comprising Gleeson and Leeming JJA and Barrett AJA, concerned an application by Treadtel International Pty Ltd (the plaintiff) for winding up orders against Cocco (the first defendant) and related relief. The plaintiff sought to wind up Cocco on grounds other than insolvency, specifically under sections 462(2)(b) and 462(2)(c) of the *Corporations Act 2001* (Cth). The plaintiff also sought relief for oppression under section 234 of the *Corporations Act*. A key aspect of the plaintiff's case involved claims for rectification of Cocco's share register, asserting beneficial ownership of a share but not being a registered holder.

The central legal issues before the Court of Appeal were whether the plaintiff had standing to pursue a winding up order under section 462(2)(b) of the *Corporations Act* as a creditor, given that its claim against Cocco was for unliquidated damages arising from a disputed agreement. Furthermore, the court had to determine whether the plaintiff had standing as a contributory under section 462(2)(c) and as a member for oppression relief, where it was not a registered shareholder but claimed beneficial ownership and sought rectification of the register. The court also considered whether these claims, including the winding up and oppression applications, could be pursued in the same proceedings as the claim for rectification of the register.

The Court of Appeal allowed the appeal, setting aside an earlier order that had prevented the plaintiff from filing an amended statement of claim. The court granted the plaintiff leave to file an amended statement of claim, but with certain paragraphs relating to relief and particulars omitted. This indicated that while the plaintiff could proceed with its claims, some aspects of its pleading were considered inappropriate or premature. The court's reasoning implicitly acknowledged that a party claiming beneficial ownership of a share, and seeking rectification of the register, might have standing to pursue winding up and oppression claims, and that these could potentially be heard alongside the rectification claim, subject to appropriate pleading. The court also made orders regarding costs, with the plaintiff ordered to pay the first defendant's costs of an interlocutory process and the respondent ordered to pay the appellants' costs of the summons for leave to appeal and the appeal itself.

Orders

Orders of the court

(1) Grant leave to appeal.

(2) Direct that a notice of appeal in the form of the draft notice of appeal in the white folder be filed within seven days.

(3) Appeal allowed.

(4) Set aside Order 1 made in the Equity Division on 8 September 2016 and order in lieu that the plaintiff have leave to file an amended statement of claim in the form annexed to the orders of 8 September 2016 and marked “A” but with the following omitted therefrom:

(a) Paras 1, 1A, 8, 9, 10 and 11 of the relief claimed; and

(b) Paras 98E and 98 to 108 inclusive of the pleading and particulars.

(5) Order, in addition to the orders for costs made in the Equity Division on 8 September 2016, as follows:

“That the plaintiff pay the costs of the first defendant of and incidental to the plaintiff’s interlocutory process filed on 9 October 2015 (including any amendment thereto) up to and including 8 September 2016.”

(6) That the respondent pay the appellants’ costs of the summons seeking leave to appeal and of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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