Treadtel International Pty Ltd v Cocco

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.