Treadtel International Pty Ltd v Cocco [2016] NSWCA 360

Court of Appeal Supreme Court New South Wales 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