In the matter of Treadtel International Pty Ltd (No 2) [2016] NSWSC 791

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Treadtel International Pty Ltd (No 2) [2016] NSWSC 791 Hearing dates: 4 December 2015 and 4 March 2016 Decision date: 20 June 2016 Jurisdiction: Equity Before: Robb J Decision: The parties are directed to bring in short minutes of order to give effect to the reasons for judgment. Catchwords: PROCEDURAL – Application for leave to amend statement of claim to seek relief under s 233 of the Corporations Act 2001 (Cth) – principles applicable – plaintiff claims second defendant holds share in first defendant on trust for plaintiff – whether plaintiff lacks standing because he is not recorded as a member of the first defendant in the register of members – different grounds for standing relied upon by plaintiff – arguable that plaintiff has standing to sue as beneficiary of trust in respect of share held by second defendant – exceptional circumstances – second defendant with conflict of interest and unwilling to sue – other alleged bases for standing permitted – leave to amend granted – application not too late – original pleading not a result of a tactical decision – application for leave to amend in part a result of defence pleaded

LEAVE – conditions on which leave to amend granted – costs occasioned by the amendment, including costs thrown away payable by plaintiff – plaintiff not ordered to pay additional security for costs – plaintiff required to discontinue related proceedings in Italy on a permanent basis – plaintiff required to pay defendant's costs of Italian proceedings Legislation Cited: Corporations Act 2001 (Cth) Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 Dymocks Book Arcade Pty Ltd v Capral Ltd (formerly Alcan Australia Ltd) [2011] NSWSC 1423 General Steel Industries v Commissioner for Railways (1964) 112 CLR 125 In the matter of Treadtel International Pty Ltd [2014] NSWSC 1406; 104 ACSR 1Niord Pty Ltd v Adelaide Lidden v Composite Buyers Ltd (1996) 67 FCR 560 Mercedes Holdings Pty Ltd v Waters (No 3) [2011] FCA 236 Petroleum NL (1990) 54 SASR 87; (1990) 2 ACSR 347 Ramage v Waclaw (1988) 12 NSWLR 84 Re Independent Quarries Pty Ltd (1993) 12 ACSR 188 Saad v State of New South Wales (No 4) [2014] NSWSC 353 TAL Life Ltd v Shuetrim [2016] NSWCA 68 Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2005] NSWSC 951 Titlow v Intercapital Group (Australia) Pty Ltd (1996) 65 FCR 449; (1996) 144 ALR 203; (1996) 20 ACSR 201 Texts Cited: Ford, Austin and Ramsay's Principles of Corporations Law (16th ed, 2014) Category: Procedural and other rulings Parties: Pierro Cocco (plaintiff) Treadtel International P/L (first defendant) Richard Crosher (second defendant) Representation: Counsel: D Sulan/G P Gee (plaintiff) J Thomson (first defendant) D Robertson (second defendant)