Bolton v WAM Active Ltd - [2025] NSWCA 81

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bolton v WAM Active Ltd [2025] NSWCA 81
Hearing dates: 17 April 2025
Date of orders: 17 April 2025
Decision date: 17 April 2025
Before: Leeming JA
Decision:
1. Continue the existing stay of order 1 made by Nixon J on 14 April 2025, subsequently extended by the Registrar and by me, until 4pm on 8 May 2025.
2. I accept the undertaking on behalf of Mr Bolton, given by his counsel, personally to pay for the costs of the administration over the period from now until 4pm on 8 May 2025 if his appeal is unsuccessful.
3. I note that Keybridge Capital Ltd will continue to incur obligations to make certain payments during the period of the stay.
4. I order that by way of security for the undertaking in order 2 above, and the obligations in order 3 above, for Mr Bolton to pay into Court or otherwise as agreed between the appellant and the first to fourth respondents the amount of AU$25,000 within seven days of today.
5. I grant liberty to apply by email to my Associate on one business day’s notice.
6. The costs of each of the appellant and first to fourth respondents be those parties’ costs in the appeal.

Catchwords:
PROCEDURE — stay pending appeal — dispute as to composition of board of listed company — whether applicant had established proper basis for stay — appeal to be heard in 12 business days — applicant profferred undertaking to be personally liable for quantifiable costs — applicant provided security for liability on undertaking — stay ordered

Legislation Cited:
Corporations Act 2001 (Cth), s 198G
Supreme Court Act 1970 (NSW), s 101

Cases Cited:
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
In the matter of Keybridge Capital Limited [2025] NSWSC 240
In the matter of Keybridge Capital Limited (No 2) [2025] NSWSC 354
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383
Qasim v PF 473 Pty Ltd [2024] NSWCA 248
Vaughan v Dawson [2008] NSWCA 169

Category: Procedural rulings
Parties: Nicholas Francis John Bolton (Appellant)
WAM Active Ltd (1st respondent)
Geoffrey James Wilson (2nd respondent)
Jesse Michael Hamilton (3rd respondent)
Martyn McCathie (4th respondent)
Frank Antony Catalano (5th respondent)
Sulieman Ahmad Sulieman Ravell (6th respondent)
Keybridge Capital Ltd (administrator appointed) (7th respondent)
Gideon Isaac Rathner (8th respondent)
John Dean Patton (9th respondent)
Richard Michael Dukes (10th respondent)
Representation:
Counsel:
G Sirtes SC and A Osborn Brodie (Appellant)
JS Emmett SC and D Krochmalik (1st to 4th respondents)
S Abraham (solicitor) (7th and 8th respondents)
Solicitors:
Hamilton Locke (Appellant)
Mills Oakley (1st to 4th respondents)
Arnold Bloch Leibler (5th respondent)
Sulieman Ahmad Sulieman Ravell (in person)
Tisher Liner FC Law (7th and 8th respondents)

File Number(s): 2025/00116543
Publication restriction: Nil
Decision under appeal

Court or tribunal:

New South Wales Supreme Court

Jurisdiction:

Equity – Corporations List

Citation:

[2025] NSWSC 240; [2025] NSWSC 354

Date…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bolton v WAM Active Ltd

Details

AGLC: Bolton v WAM Active Ltd [2025] NSWCA 81
Case: [2025] NSWCA 81
Decision Date: 17 April 2025

CaseChat Overview and Summary

In *Bolton v WAM Active Ltd*, the applicant, Mr Bolton, sought a stay of a court order pending his appeal. The dispute concerned the composition of the board of a listed company. The application was heard by Leeming JA in the Court of Appeal of New South Wales.

The primary legal issue before the court was whether the applicant had established a proper basis for a stay of the order, given that the appeal was scheduled to be heard within a short timeframe of 12 business days. This involved assessing the balance of convenience and the likelihood of irreparable harm to the applicant if the stay was not granted.

Leeming JA considered the applicant's undertaking to be personally liable for quantifiable costs associated with the administration of the company during the period of the stay, should the appeal be unsuccessful. The court also noted the ongoing payment obligations of Keybridge Capital Ltd. To provide security for these potential costs and obligations, the court ordered the applicant to pay $25,000 into court within seven days. The existing stay was continued until 4pm on 8 May 2025. The costs of the application were reserved to be costs in the appeal.

Orders

Orders of the court

1. Continue the existing stay of order 1 made by Nixon J on 14 April 2025, subsequently extended by the Registrar and by me, until 4pm on 8 May 2025.

2. I accept the undertaking on behalf of Mr Bolton, given by his counsel, personally to pay for the costs of the administration over the period from now until 4pm on 8 May 2025 if his appeal is unsuccessful.

3. I note that Keybridge Capital Ltd will continue to incur obligations to make certain payments during the period of the stay.

4. I order that by way of security for the undertaking in order 2 above, and the obligations in order 3 above, for Mr Bolton to pay into Court or otherwise as agreed between the appellant and the first to fourth respondents the amount of AU$25,000 within seven days of today.

5. I grant liberty to apply by email to my Associate on one business day’s notice.

6. The costs of each of the appellant and first to fourth respondents be those parties’ costs in the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bolton v WAM Active Ltd [2025] NSWCA 81
Hearing dates:	17 April 2025
Date of orders:	17 April 2025
Decision date:	17 April 2025
Before:	Leeming JA
Decision:	1. Continue the existing stay of order 1 made by Nixon J on 14 April 2025, subsequently extended by the Registrar and by me, until 4pm on 8 May 2025. 2. I accept the undertaking on behalf of Mr Bolton, given by his counsel, personally to pay for the costs of the administration over the period from now until 4pm on 8 May 2025 if his appeal is unsuccessful. 3. I note that Keybridge Capital Ltd will continue to incur obligations to make certain payments during the period of the stay. 4. I order that by way of security for the undertaking in order 2 above, and the obligations in order 3 above, for Mr Bolton to pay into Court or otherwise as agreed between the appellant and the first to fourth respondents the amount of AU$25,000 within seven days of today. 5. I grant liberty to apply by email to my Associate on one business day’s notice. 6. The costs of each of the appellant and first to fourth respondents be those parties’ costs in the appeal.
Catchwords:	PROCEDURE — stay pending appeal — dispute as to composition of board of listed company — whether applicant had established proper basis for stay — appeal to be heard in 12 business days — applicant profferred undertaking to be personally liable for quantifiable costs — applicant provided security for liability on undertaking — stay ordered
Legislation Cited:	Corporations Act 2001 (Cth), s 198G Supreme Court Act 1970 (NSW), s 101
Cases Cited:	Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 In the matter of Keybridge Capital Limited [2025] NSWSC 240 In the matter of Keybridge Capital Limited (No 2) [2025] NSWSC 354 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 Qasim v PF 473 Pty Ltd [2024] NSWCA 248 Vaughan v Dawson [2008] NSWCA 169
Category:	Procedural rulings
Parties:	Nicholas Francis John Bolton (Appellant) WAM Active Ltd (1st respondent) Geoffrey James Wilson (2nd respondent) Jesse Michael Hamilton (3rd respondent) Martyn McCathie (4th respondent) Frank Antony Catalano (5th respondent) Sulieman Ahmad Sulieman Ravell (6th respondent) Keybridge Capital Ltd (administrator appointed) (7th respondent) Gideon Isaac Rathner (8th respondent) John Dean Patton (9th respondent) Richard Michael Dukes (10th respondent)
Representation:	Counsel: G Sirtes SC and A Osborn Brodie (Appellant) JS Emmett SC and D Krochmalik (1st to 4th respondents) S Abraham (solicitor) (7th and 8th respondents) Solicitors: Hamilton Locke (Appellant) Mills Oakley (1st to 4th respondents) Arnold Bloch Leibler (5th respondent) Sulieman Ahmad Sulieman Ravell (in person) Tisher Liner FC Law (7th and 8th respondents)
File Number(s):	2025/00116543
Publication restriction:	Nil
Decision under appeal	Court or tribunal: New South Wales Supreme Court Jurisdiction: Equity – Corporations List Citation: [2025] NSWSC 240; [2025] NSWSC 354 Date…