Bolton v WAM Active Ltd (No 2) - [2025] NSWCA 99

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bolton v WAM Active Ltd (No 2) [2025] NSWCA 99
Hearing dates: 8 May 2025
Date of orders: 8 May 2025
Decision date: 12 May 2025
Before: Bell CJ; Leeming JA; Kirk JA
Decision:
1. Appeal dismissed.
2. Appellant to pay the respondents’ costs of the appeal.
3. Order 1 of the orders made by Leeming JA in Bolton v WAM Active Ltd [2025] NSWCA 81 on 17 April 2025 be discharged.

Catchwords:
CORPORATIONS – meetings – general meeting convened pursuant to Corporations Act 2001 (Cth), s 249F to remove directors – majority of members cast votes in favour of removal of three of four directors prior to meeting – directors appointed administrator on evening before meeting – chairman of meeting purported to adjourn meeting – no challenge to finding that purported adjournment invalid – authorised representative of major shareholder assumed chair – resolutions removing three directors and appointing replacements carried – whether authorised representative was appointed interim chair and was unable to chair meeting – whether other directors willing to act as chair – whether authorised representative, who was not himself a member, entitled to act as chair – whether grounds which had not been raised at trial ought be raised on appeal – whether s 1322 available to cure any defect

Legislation Cited:
Corporations Act 2001 (Cth), s 249F, 1322

Cases Cited:
Bolton v WAM Active Ltd [2025] NSWCA 81
In the matter of Keybridge Capital Ltd [2025] NSWSC 240
In the matter of Keybridge Capital Ltd (No 2) [2025] NSWSC 354
Metwally v University of Wollongong [1985] HCA 28; 59 ALJR 481
National Australia Bank Ltd v Market Holdings Pty Ltd [2001] NSWSC 253; 161 FLR 1
Sandalwood Properties Ltd (Subject to a Deed of Company Arrangement) v Huntley Management Ltd [2018] FCA 1502; 131 ACSR 215
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598

Category: Principal judgment
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, A Byrne, A Osborn Brodie (Appellant)
M Darke SC, JS Emmett SC and D Krochmalik (1st to 4th respondents)
Solicitors:
Hamilton Locke (Appellant)
Mills Oakley (1st to 4th respondents)
Tisher Liner FC Law (7th and 8th respondents)
Submitting appearances from 5th, 6th, 9th and 10th 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 of Decision:

21 March 2025; 14 April 2025

Before:

Nixon J

File Number(s):

2025/54507

HEADNOTE

[This headnote is not…

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.

Keep reading for free

Create a free CaseChat account to read Bolton v WAM Active Ltd (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWCA 99
Decision Date: 12 May 2025

CaseChat Overview and Summary

The dispute in *Bolton v WAM Active Ltd (No 2)* concerned the validity of resolutions passed at a general meeting of WAM Active Ltd, convened under section 249F of the *Corporations Act 2001* (Cth) to remove directors. The proceedings were before the Court of Appeal of New South Wales, with Bell CJ, Leeming and Kirk JJA presiding. The central controversy revolved around who was entitled to chair the meeting and whether the resolutions for the removal of three of the four directors, and the appointment of their replacements, were validly passed, particularly in light of the directors appointing an administrator on the evening before the meeting.

The Court of Appeal was required to determine several key legal issues. These included whether the authorised representative of a major shareholder was validly appointed as interim chair of the meeting, and if so, whether they were subsequently unable to chair the meeting. The court also considered whether other directors were willing to act as chair, and crucially, whether an authorised representative, who was not a member of the company, was entitled to act as chair. Furthermore, the court had to assess whether grounds not raised at the trial could be considered on appeal, and whether section 1322 of the *Corporations Act 2001* (Cth) could be invoked to remedy any defects in the meeting or its proceedings.

The Court of Appeal dismissed the appeal, upholding the validity of the resolutions. The court reasoned that the purported adjournment of the meeting by the chairman was invalid. It was found that the authorised representative of the major shareholder was properly appointed as interim chair and was entitled to chair the meeting, notwithstanding not being a member of the company. The court also determined that the other directors were not willing to act as chair. The appeal court found no basis to consider grounds not raised at trial and concluded that section 1322 was not applicable to cure the alleged defects. Consequently, the appeal was dismissed, with the appellant ordered to pay the respondents’ costs.

Orders

Orders of the court

1. Appeal dismissed.

2. Appellant to pay the respondents’ costs of the appeal.

3. Order 1 of the orders made by Leeming JA in Bolton v WAM Active Ltd [2025] NSWCA 81 on 17 April 2025 be discharged.

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 (No 2) [2025] NSWCA 99
Hearing dates:	8 May 2025
Date of orders:	8 May 2025
Decision date:	12 May 2025
Before:	Bell CJ; Leeming JA; Kirk JA
Decision:	1. Appeal dismissed. 2. Appellant to pay the respondents’ costs of the appeal. 3. Order 1 of the orders made by Leeming JA in Bolton v WAM Active Ltd [2025] NSWCA 81 on 17 April 2025 be discharged.
Catchwords:	CORPORATIONS – meetings – general meeting convened pursuant to Corporations Act 2001 (Cth), s 249F to remove directors – majority of members cast votes in favour of removal of three of four directors prior to meeting – directors appointed administrator on evening before meeting – chairman of meeting purported to adjourn meeting – no challenge to finding that purported adjournment invalid – authorised representative of major shareholder assumed chair – resolutions removing three directors and appointing replacements carried – whether authorised representative was appointed interim chair and was unable to chair meeting – whether other directors willing to act as chair – whether authorised representative, who was not himself a member, entitled to act as chair – whether grounds which had not been raised at trial ought be raised on appeal – whether s 1322 available to cure any defect
Legislation Cited:	Corporations Act 2001 (Cth), s 249F, 1322
Cases Cited:	Bolton v WAM Active Ltd [2025] NSWCA 81 In the matter of Keybridge Capital Ltd [2025] NSWSC 240 In the matter of Keybridge Capital Ltd (No 2) [2025] NSWSC 354 Metwally v University of Wollongong [1985] HCA 28; 59 ALJR 481 National Australia Bank Ltd v Market Holdings Pty Ltd [2001] NSWSC 253; 161 FLR 1 Sandalwood Properties Ltd (Subject to a Deed of Company Arrangement) v Huntley Management Ltd [2018] FCA 1502; 131 ACSR 215 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598
Category:	Principal judgment
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, A Byrne, A Osborn Brodie (Appellant) M Darke SC, JS Emmett SC and D Krochmalik (1st to 4th respondents) Solicitors: Hamilton Locke (Appellant) Mills Oakley (1st to 4th respondents) Tisher Liner FC Law (7th and 8th respondents) Submitting appearances from 5th, 6th, 9th and 10th 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 of Decision: 21 March 2025; 14 April 2025 Before: Nixon J File Number(s): 2025/54507