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 to be read as part of the judgment]

In February 2025, members of Keybridge Capital Ltd held a general meeting to consider resolutions to replace the directors of Keybridge, of whom Mr Bolton was one, with those proposed by WAM Active Ltd, a substantial minority shareholder. Proxies representing more than 50% of the company’s ordinary shares were lodged prior to the meeting. On the evening before the meeting, the directors had resolved to appoint a voluntary administrator to Keybridge on the basis that the company was likely to become insolvent.

At the general meeting, the chairman Mr Patton, a director of Keybridge who was also a subject of the proposed resolutions, purported to adjourn the meeting. Mr Catalano, a director who had earlier expressed his intention to support the resolutions to remove Messrs Bolton, Patton and Dukes, appeared remotely but that connection was disconnected shortly after the purported adjournment. The authorised representative of WAM Active Ltd, Mr Hamilton, then proposed a resolution appointing himself as chair to continue the meeting – a position which was uncontested. The resolutions to remove all directors save Mr Catalano, and to replace them with WAM Active Ltd’s proposed directors, then passed.

The primary judge found that the adjournment was invalid and that Mr Hamilton was validly appointed chair under clause 7.5(c)(2) of the company’s constitution, which provided: “if no other director willing to act is present at the meeting, a member who is present and willing to act” may become chairs. His Honour found that Messrs Bolton and Patton were no longer “willing” to participate in the meeting, and that Mr Catalano “ceased to be present” once the telephone line was closed.

On appeal, the appellant submitted that Mr Hamilton was invalidly appointed chair because (a) Mr Hamilton as interim chair could not propose himself as chair, (b) Messrs Bolton and Catalano were present and willing to act as chair, and (c) Mr Hamilton, as authorised representative of the corporate shareholder, was not a “member” who could be “present” at the meeting. Those submissions were not squarely raised at trial. The respondents said that the Court should not entertain the grounds, and said that s 1322 of the Act would have been available had the issues been raised at trial.

The Court (Bell CJ, Leeming JA, Kirk JA) held, dismissing the appeal:

1. The proposition that an interim chair was appointed presupposed that there was a contest as to who would chair the meeting. Nothing in the evidence suggested such a contest. In any event, the submission cannot be raised on appeal because it raises matters apt to have affected the evidence, cross-examination and submissions at trial: [47]-[52].

National Australia Bank Ltd v Market Holdings Pty Ltd (in liq) [2001] NSWSC 253; (2001) 37 ACSR 629, considered.

Metwally v University of Wollongong [1985] HCA 28; 59 ALJR 481, applied.

2. The evidence did not support a finding that Mr Bolton was “willing” to be chair at the relevant time, upon Mr Patton’s invalid adjournment. Mr Catalano was not physically present, and there was no indication that he was willing to chair the meeting by telephone connection. In any event, the submission cannot be raised on appeal because it is antithetical to the position taken by the appellant in the meeting and at trial: [54]-[69].

3. Clause 1.1(f) of the Constitution, which deems a reference to a member present at a general meeting to include a member present by representative, had the effect that WAM Active Ltd was present at the meeting by its corporate representative, Mr Hamilton, who was thereby capable of being chair under rule 7.5: [70]-[71].

JUDGMENT

1. THE COURT: On 8 May 2025, shortly after the conclusion of oral submissions, this Court made orders dismissing this appeal with costs and discharging the stay which had been ordered pending the appeal. We indicated that reasons for judgment would be delivered promptly thereafter. These are our reasons.

Background

2. This appeal concerns a meeting of members of Keybridge Capital Ltd, held some three months ago, at around 4.30pm on 10 February 2025. The meeting had been called pursuant to s 249F of the Corporations Act 2001 (Cth) by the first respondent WAM Active Ltd, which is Keybridge’s largest shareholder. The notice stated that the business of the meeting was to consider and, if thought fit, to pass resolutions:

to remove Mr Nicholas Bolton, Mr John Patton, Mr Frank Antony Catalano and Mr Richard Dukes as directors of Keybridge; and

to appoint Mr Geoffrey Wilson, Mr Jesse Hamilton, Mr Martyn McCathie and Mr Sulieman Ravell as directors of Keybridge.

3. The four men nominated by WAM Active Ltd are the second, third, fourth and sixth respondents to this appeal. Mr Hamilton was WAM Active’s Joint Company Secretary. It is accepted that he was WAM Active’s authorised representative at the meeting.

4. The notice stated that it was a “hybrid” meeting, which could be attended in person or by telephone, but added that no voting facilities were available by telephone. Members were advised they could vote by proxy. Proxy forms were to be supplied to BoardRoom Pty Ltd, which WAM Active had appointed as Meeting Registry, no later than 5pm Thursday 6 February 2025.

5. Keybridge and WAM Active are both ASX-listed public companies. WAM Active and associated entities hold approximately 43.5% of the total shares issued by Keybridge. Mr Catalano and his associated entities hold slightly more than 10% of the shares issued by Keybridge.

6. On the evening of 9 February, Keybridge’s directors resolved to appoint a voluntary administrator, Mr Rathner. The primary judge, Nixon J, found that it was not established that Mr Rathner was appointed for an improper purpose. Nonetheless, his Honour also found that at that time, the time for members to submit proxy votes on the resolutions had expired, and that proxies in respect of more than 50% of Keybridge’s total shares issued had been received in favour of the resolutions to remove Messrs Bolton, Patton and Dukes.

7. The Chair of the meeting, Mr Patton, purported to adjourn the meeting shortly after its commencement on 10 February. Messrs Catalano and Hamilton objected to his doing so. The primary judge found that the purported adjournment was invalid and of no effect. There is no challenge to that finding. Thereafter, in circumstances which will shortly be described in more detail, Mr Hamilton purported to chair the meeting and the resolutions were carried, save that in relation to the removal of Mr Catalano, which failed. Of course, once the resolutions were put forward for a vote, the outcome was predetermined by the proxies which had already been cast by WAM Active and Mr Catalano and entities associated with them. Mr Bolton made it clear while Mr Hamilton was purporting to chair the balance of the meeting that he was of the view that Mr Hamilton had no power to take that course and the resolutions purportedly passed were invalid.

8. WAM Active commenced proceedings the following day, 11 February 2025, seeking declaratory relief that the meeting was valid, that Mr Bolton had been removed and that its nominees had been appointed directors. There were no pleadings; instead the litigation was conducted on the basis of the originating process, a document entitled “Plaintiffs’ issues and contentions” and the affidavits.

9. There was a final hearing in the Corporations List on 5, 6 and 7 March 2025, following which the primary judge delivered a judgment of some 376 paragraphs on 21 March: In the matter of Keybridge Capital Ltd [2025] NSWSC 240. The Court declared that:

(a) on 10 February 2025 at 4:30pm, Keybridge validly held a meeting of its members convened in accordance with s 249F of the Act;

(b) at the Section 249F Meeting, the members of Keybridge resolved that Mr Bolton, Mr Patton and Mr Dukes be removed as directors of Keybridge and that Mr Wilson, Mr Hamilton, Mr McCathie and Mr Ravell be appointed as directors of Keybridge; and

(c) following the Meeting on 10 February 2025, the directors of Keybridge were:

(i) Mr Catalano; (ii) Mr Wilson; (iii) Mr Hamilton; (iv) Mr McCathie; and (v) Mr Ravell.

10. The unchallenged findings mentioned above that his Honour was not satisfied that an administrator was appointed for an improper purpose, but that the purported adjournment was invalid and of no effect, were made at [344] and [165] of those reasons. Concerning the latter, his Honour said at [177] and [190]:

WAM and its associated entities held a 43.52% voting interest in Keybridge, and Mr Catalano and his associated entities held a 10.36% voting interest in Keybridge. Mr Patton was aware that if WAM and Mr Catalano supported the resolutions to remove and replace directors, those resolutions would necessarily pass at the Section 249F Meeting. Mr Patton was also aware that neither WAM or Mr Catalano had indicated that they required further time to consider their position on the resolutions by reason of the appointment of Mr Rathner as voluntary administrator; and instead, each objected to the adjournment of the Section 249F Meeting (WAM doing so through its representative Mr Hamilton) and supported the meeting continuing, with the resolutions being put to a vote. There was no reason for Mr Patton to consider that an adjournment was necessary in order to promote the due exercise of the right of the majority of shareholders to replace any or all of the Incumbent Directors and to appoint the Proposed Directors.

…

If the will of a majority of shareholders was (as Mr Patton knew) that the Incumbent Directors (other than Mr Catalano) be removed and the Proposed Directors be appointed, and that this occur on 10 February 2025, then an adjournment for ten weeks was apt to frustrate the will of majority of shareholders and to interfere with their statutory right to remove directors by resolution on two months’ notice (in circumstances where WAM had given its s 203D(2) notice on 9 December 2024). The effect of the purported ten-week adjournment was that these resolutions would not be put to shareholders for a period of more than four-and-a-half months after that notice was given.

11. There was a further hearing on 8 April 2025, leading to a second judgment, once again promptly delivered, on 14 April 2025: In the matter of Keybridge Capital Ltd (No 2) [2025] NSWSC 354 and an order that Keybridge’s administration was to end with immediate effect. It is unnecessary to summarise the issues resolved by the second judgment.

12. An appeal was filed on 16 April 2025. On 17 April 2025, that appeal was fixed for final hearing on 8 May 2025, and directions were made for the exchange of submissions and preparation of appeal books. The primary judge had granted a limited stay of the order that the administration end, and that stay was extended, on terms including the provision of security and an undertaking from Mr Bolton, until 4pm on 8 May 2025: Bolton v WAM Active Ltd [2025] NSWCA 81.

13. On the evening of 6 May 2025, substantially in accordance with the timetable, Mr Bolton’s submissions in reply were filed. They stated that grounds 2, 3 and 4 of the appeal were not pressed. The only ground which is pressed is ground 1. That ground is confined to the first judgment, and is as follows:

The trial judge erred in:

(a) holding (at J1 [242]) that [Hamilton] was validly elected as chairperson of the Section 249F Meeting; and

(b) failing to find that:

i. Hamilton was not a member of [Keybridge];

ii. prior to Hamilton’s purported election as chairperson of the Section 249F Meeting:

A. directors of Keybridge were present at the meeting;

B. no enquiry was made by Hamilton of each (or any) of those directors as to whether he would be willing to act as chairperson; and

C. directors of Keybridge who were present at the meeting were willing to act as chairperson; and

iii. in the premises of (i) and (ii):

A. Hamilton was not elected as chairperson of the Section 249F Meeting;

B. steps purportedly taken by Hamilton as chairperson of the Section 249F Meeting, including the putting of resolutions to a vote of the meeting, were invalid; and

C. resolutions purportedly put to votes at the meeting, and the purported outcome of those votes, were invalid.

14. It will be seen that ground 1 is confined to whether or not Mr Hamilton was validly elected as chairperson of the meeting.

Evidence and findings of fact by the primary judge

15. The parties’ submissions on the appeal focussed attention much more precisely than had occurred at trial upon the events at the meeting of 10 February 2025, reflecting the fact – as Mr Sirtes SC, who had not appeared at trial, candidly and appropriately acknowledged – that the contentions now advanced on behalf of Mr Bolton had not been squarely advanced at trial.

16. There were three relatively contemporaneous documents which bore upon what had occurred, which were the subject of the parties’ submissions, and which warrant extensive reproduction.

The minutes signed by Mr Hamilton

17. The first was the official company minutes, signed by Mr Hamilton, which were prepared based on notes taken by a solicitor present who was acting for WAM Active. The solicitor’s original notes were not in evidence; however her evidence was that Mr Hamilton’s affidavit was prepared independently of her notes.

18. The minutes signed by Mr Hamilton identified that Mr Catalano attended by telephone, and that Messrs Bolton and Patton attended in person (Mr Dukes does not appear to have been in attendance). Aside from the directors who were the subject of the resolutions appointing them as directors, the administrator, lawyers and registry officials, the only others physically in attendance were two shareholders, Mr and Mrs Schwartz, and Mr Patton’s son. The minutes record a statement by Mr Patton, following which there were hostile exchanges between Messrs Patton, Catalano and Hamilton. In response to Mr Patton’s statement that “director nominees need to consider whether they want to withdraw their consent to act”, Mr Ravell stated “You have three of those directors here before you today. None of us have withdrawn their consent to act”. Mr Patton said “Consistent with my powers as chairman under rule 7.6 of the Constitution it is my decision that the meeting now be adjourned”. Mr Hamilton protested that decision. Mr Catalano is then recorded as saying:

Well, the voluntary administrator was appointed very conveniently after I informed the Company I would vote with WAM.

19. The entirety of sections 4 and 5 of the minutes is as follows:

Mr Patton’s attempts to adjourn the Meeting and shareholder objections

Mr Patton then purported to adjourn the Meeting saying words to the effect of “I will read the proxies when I get to the resolutions. But consistent with my power under the constitution, at 4.55pm I am adjourning to a later date.”

There was an exchange between Mr Patton, Mr Hamilton and Mr Ravell, with statements including:

Mr Hamilton: WAM Active objects to that adjournment. You have to do the will of the meeting. More than 50% of shareholders have voted to remove you. You are not adjourning for a proper purpose. If you try to adjourn this meeting, we will elect a chair and be holding it with or without you. The Chairman must do the will of the meeting.

Mr Ravell: I second the objection to the adjournment.

Mr Patton: Well I am adjourning the meeting.

Mr Hamilton: You are adjourning to what time and place? You need to give a time and place for the adjournment to be valid.

Mr Patton: I do not. I adjourn it to a later date that will be notified in due course. The meeting is closed.

Mr Patton then rose from the Chairman’s table at the front of the room, closed the telephone line, and started to walk out of Meeting. Mr Bolton, Mr Will Patton and Mr and Mrs Schwartz start to walk out of the Meeting, but all remain in the room (standing).

Mr Ravell, Mr McCathie, Mr Rathner, Mr Abraham, and Ms Reid remained seated.

5. Mr Hamilton is appointed as Chair of the Meeting

Mr Hamilton gets up from his previous seat with the other shareholders, and takes a seat in front of the Chairman’s table, facing the attendees of the Meeting. Mr Hamilton begins reading from a script.

Mr Ravell calls Mr Catalano’s phone number at 4.57pm, with Mr Catalano rejoining the Meeting via telephone call lasting 6 minutes and 52 seconds.

Mr Hamilton stated:

If Keybridge’s outgoing directors are unwilling or unable to continue the Meeting, the shareholders will elect one of their number to act as Chairman. As the corporate authorised representative present for WAM Active, I am willing to be elected to act as chairperson for the Meeting. Can I please have the shareholders present confirm my election?

Mr Ravell seconds the appointment of Mr Hamilton as Chairman of the Meeting.

Mr Hamilton then asked Automic if they were willing to act as registry, which they declined. Mr Hamilton then stated:

I note that a representative from Boardroom is here as independent observer.

For anyone unfamiliar, Boardroom is a share registry services provider to ASX listed entities.

If you have not registered your attendance with Boardroom, they are over here by the door - could you please register your attendance with Boardroom now.

Boardroom will record the voting of the shareholders, including proxies already known to be submitted.

WAM Active wants all shareholders to be able to participate as usual, with proper safeguards in place in relation to proxies and voting. All voting on the resolutions is being conducted via poll.

If you have already submitted a proxy form in hard copy, or voted online, you are not required to vote again but may do so.

The WAM Active convened meeting is open. I will now read out the resolutions to be considered by Keybridge’s shareholders.

20. Thereafter the minutes record that all resolutions passed save for the removal of Mr Catalano. They also record that while Mr Hamilton was proposing some of the resolutions, Mr Bolton said “Jesse you are making a fool of yourself, the meeting has been adjourned” and “You don’t have power under the constitution to chair a meeting” and “I am the deputy Chairman, there are other directors here, people who can chair any meeting. You don’t have the power to do it. This meeting has been adjourned”.

Mr Hamilton’s filenote

21. The second was a filenote made by Mr Hamilton shortly after the meeting. His note recorded the following:

[Mr Patton] stated that he was using his power as Chairman of the meeting under the Company’s constitution to purportedly adjourn it.

I then proceeded to object formally to the meeting being purportedly adjourned and noted that he was overriding the will of the meeting and that he knows the proxy results of the resolutions and that they are being removed as directors today based on the votes and that it is an improper adjournment of the meeting / he is doing it for an improper purpose. I believe Mr Ravell who was present also objected to the adjournment as did Mr Catalano who was on the teleconference dial in.

The Chairman appeared to acknowledge the objection but reiterated his previous comments regarding the purported adjournment and his reasons. At no time did he directly link any of those reasons to why this meeting was impacted and the true basis for the adjournment even when requested to do so. At one point when he mentioned Resolution 7 of the 18th of February meeting again and their ability to raise capital, I noted that the effect of that resolution was for the Company to issue shares to Mr Bolton to dilute everyone’s voting power.

I also made the Chair aware that if decides to proceed with the purported adjournment without a proper purpose, the shareholders present, representing over 50% of the register in person or by proxy would continue and reopen the meeting and elect a Chairman on the floor to hear the remainder of the business of the meeting with involved going through the resolutions and the votes/proxies submitted.

The chairman asked me to repeat what I said twice, which I said the same thing to him again until it was clear what I said.

A back and forth ensued with other shareholders at various points, including Mr Catalano dialling in via teleconference, about the actions of the board on appointing a VA post them knowing that he was voting to remove them from the board and supporting WAM at today’s EGM. Mr Catalano noted the convenience of the timing of the Yowie board making the decision to call in the loan with KBC (noting KBC owns 78- 79% of Yowie, and Mr Patton and Mr Bolton make up two of the three directors of the board of Yowie, with the third director of Yowie allegedly according to Mr Catalano being a direct report of Mr Bolton).

…

More objections were raised regarding the purported adjournment (seconded by Mr Ravell) before eventually the Chair purported to close the meeting at around 4.55pm and then proceeded to hand [sic – hang] up on the teleconference where Mr Catalano and other shareholders and observers were listening in. I note that no one left the meeting at this time and all people present appeared to remain in the room.

At multiple times before the purported adjournment of the meeting, the Chairman was asked how this meeting had anything to do with the ACM transaction with Mr Catalano and Resolution 7 to raise money to Mr Bolton on the meeting now scheduled for the 18^th of February, and why they are being used as the basis for the purported adjournment of the meeting, to which he had no answer. Mr Ravell and I (in addition to Mr Catalano) noted that this does not constitute a proper purpose to adjourn the meeting and the Chairman has no basis to overturn the will of the shareholders present and voting in person or by proxy, especially when it was clear that the incumbent board and Mr Patton himself were being removed from their positions by shareholders.

I note that before the teleconference was ended that Mr Catalano described Mr Patton’s conduct as the Chairman of the meeting as “reprehensible”.

I noted to the Chairman on multiple occasions that the adjournment was not done for a proper purpose, it also was not a proper adjournment as a date and time of the adjournment needs to be announced to the exchange to shareholders if it is done so, which Mr Patton did not do – when I told him that he needs to do so, he responded with “no I don’t”.

Reopening of the EGM

At this time, having foreseen these events taking place today at the meeting as a possibility, mainly due to previous conduct of KBC and the lengths they will go to in order to override the will of the shareholders and entrench themselves in their positions at KBC and Yowie, we had prepared (together with our counsel) a script to use in the event that the Chairman tried to purportedly adjourn the meeting without putting the resolutions to shareholders and overriding the will of the shareholders at the meeting as well as in the event that KBC decided to postpone the meeting. It is my understanding that the Chairman of a meeting can only postpone or adjourn a meeting with a proper purpose and must uphold the will of the shareholders at the meeting, which I don’t believe Mr Patton did.

I started reading from the script in front of me [refer to scanned copy of the script provided] noting that the shareholders of the company were reopening the meeting and put myself forward as Chairman to be elected on the floor to continue the unfinished business that was purportedly adjourned by Mr Patton. Reading from my script, by way of a shareholder motion on the floor (seconded by Mr Ravell), I was elected as Chair of the meeting and proceeded to read through the order of business.

As I was proceeding to read from my script, I believe Mr Ravell dialled in Mr Catalano on his mobile device (who owns approximately 10% of KBC) and who also had expressed his desire for the meeting to proceed earlier.

This then represented approximately 54%+ of the KBC register who I understand had voted to remove Mr Bolton, Mr Patton and Mr Dukes from the Board of KBC and to elect Mr Ravell, Mr Wilson, myself and Mr McCathie to the board of KBC. WAM had voted to keep Mr Catalano on the board of KBC at the time and I believe the resolution to remove him was to fail as a result.

I continued to read the script while Mr Bolton, and at times Mr Patton, stood over me (as I was seated) saying “What are you doing?” “You’re embarrassing yourself” and “We have closed the meeting” on numerous occasions. At the time it felt like Mr Patton and Mr Bolton were trying to harass us as we read them through the resolutions and unfinished business of the meeting in an attempt to stop the meeting from being reopened.

Mr Patton’s minutes

22. The third was Mr Patton’s minutes of the meeting. However, these were confined to the events prior to the purported adjournment, and for that reason were not as significant for the purpose of the submissions advanced on appeal as the other two documents.

23. The minutes signed by Mr Patton record:

Unruly Behaviour

The meeting became very disorderly and unruly, with Mr Catalano interjecting numerous times over the tele-conference line (with no ability for the call to be muted) whilst multiple parties in the room were talking loudly and over the top of one another – with smaller shareholders taking exception to WAM’s conduct. It became very difficult to conduct the meeting in an orderly manner, and this formed a further basis to adjourn the meeting. In any event, it was proper to adjourn the meeting on that basis.

24. Those minutes also record a “Chairman’s Statement” which occupies more than one third of the entire document which contained 10 reasons why the adjournment was appropriate. Despite the heading, the minutes do not suggest that those matters were in fact stated to the meeting, and Mr Patton confirmed as much in cross-examination.

25. Mr Patton’s minute concludes:

Meeting Adjournment

JP adjourned the meeting at 4.55pm, with details of the date and time for the resumed meeting to be provided – which was done shortly thereafter via an Announcement to the ASX. The date selected for the resumed meeting was the first practical date after the estimated completion of the Administration, taking into account the informed notice requirements under rule 7.6(k) of the Company’s Constitution (and after checking that the meeting room was available at that time and date).

26. The parties’ submissions were directed to precisely when Mr Catalano was present (by telephone) at the meeting, and precisely what occurred and what was said after Mr Patton announced that the meeting was adjourned and together with Mr Bolton left the front of the room, but stayed at the back near the door, as Mr Hamilton purported to conduct the balance of the meeting.

Provisions of Keybridge’s Constitution

27. Rule 7.5 of Keybridge’s Constitution provides:

7.5 Chairperson of general meetings

(a) The chairperson of directors or, in the absence of the chairperson of directors, the deputy chairperson is entitled, if present within 15 minutes after the time appointed for a general meeting and willing to act, to preside as chairperson at the meeting.

(b) The directors present may choose one of their number to preside as chairperson, if at a general meeting:

(1) there is no chairperson or deputy chairperson of directors;

(2) neither the chairperson nor the deputy chairperson of directors is present within 15 minutes after the time appointed for the meeting; or

(3) neither the chairperson nor the deputy chairperson of directors is willing to act as chairperson of the meeting.

(c) If the directors do not choose a chairperson under rule 7.5(b), the members present must elect as chairperson of the meeting:

(1) another director who is present and willing to act; or

(2) if no other director willing to act is present at the meeting, a member who is present and willing to act.

(d) A chairperson of a general meeting may, for any item of business or discrete part of the meeting, vacate the chair in favour of another person nominated by him or her.

28. Clause 1.1(f) provides:

A reference in this constitution to a member present at a general meeting is a reference to a member present in person or by proxy, attorney or Representative or, except in any rule that specifies a quorum or except in any other rule prescribed by the directors, a member who has duly lodged a valid direct vote in relation to the general meeting under rule 7.7(j).

29. Clause 1.1(a) defines “Representative” as follows:

in relation to a member which is a body corporate and in relation to a meeting means a person authorised in accordance with the Act (or a corresponding previous law) by the body corporate to act as its representative at the meeting.

30. Clause 7.9(e), (f) and (g) provide:

7.9(e) Unless the instrument or resolution appointing a proxy, attorney or Representative provides differently, the proxy, attorney or Representative has the same rights to speak, demand a poll, join in demanding a poll or act generally at the meeting as the member would have had if the member was present.

7.9(f) Unless otherwise provided in the appointment of a proxy, attorney or Representative, an appointment will be taken to confer authority:

(1) even though the instrument may refer to specific resolutions and may direct the proxy, attorney or Representative how to vote on those resolutions, to do any of the acts specified in rule 7.9(g); and

(2) even though the instrument may refer to a specific meeting to be held at a specified time or venue, where the meeting is rescheduled or adjourned to another time or changed to another venue, to attend and vote at the rescheduled or adjourned meeting or at the new venue.

7.9(g) The acts referred to in rule 7.9(f)(1) are:

(1) to vote on any amendment moved to the proposed resolutions and on any motion that the proposed resolutions not be put or any similar motion;

(2) to vote on any procedural motion, including any motion to elect the chairperson, to vacate the chair or to adjourn the meeting; and

(3) to act generally at the meeting.

Findings made by the primary judge

31. The primary judge had the benefit of the documents summarised above, and also testimonial evidence from Ms Reid, Mr Rathner, Mr Bolton and Mr Patton. His Honour made the following factual findings concerning the meeting, at [122]-[139]:

122 Mr Rathner provided a written consent for Mr Patton to chair the Section 249F Meeting. Around an hour before the Section 249F Meeting, Mr Patton informed Mr Rathner that he planned to adjourn the meeting. Mr Rathner did not request any such adjournment or express the view that any such adjournment was necessary or endorse the proposed course, stating in cross-examination that: “I had no view in relation to what he was going to do at the meeting other than to ensure any reference to me was properly presented.”

123 Mr Rathner confirmed that, although he attended the Section 249F Meeting, he took no active part in it and did not express any views in relation to the business before the meeting or its adjournment:

“Q. You attended the meeting but you took no part in it or made no contribution to it, is that right?

A. That is correct.

Q. May we take it from that you didn’t tell the meeting that you would be assisted, as administrator, by the meeting being adjourned?

A. I did not.

Q. You didn’t tell anyone at the meeting that you might not implement the will of the shareholders as to the appointment of directors, is that correct?

A. I didn’t, I did not.”

Events at the Section 249F Meeting up to “adjournment”

124 WAM’s solicitor, Ms Reid, attended the Section 249F Meeting and took detailed minutes of that meeting. Mr Patton also produced minutes of the meeting.

125 There were two main differences between these sets of minutes.

126 First, Mr Patton’s record of events concludes at the time that he announced that the meeting had been adjourned, whereas Ms Reid’s note records the events which followed that announcement, including Mr Hamilton nominating himself as chairperson and putting to a vote the resolutions to remove the Incumbent Directors and to appoint the Proposed Directors.

127 Secondly, Mr Patton’s minutes included, at the end, a section headed “Chairman’s Statement”. Mr Patton acknowledged that this section did not represent matters said at the meeting, but instead his comments on various issues which he recorded after the meeting.

128 Otherwise, insofar as both sets of minutes covered the events leading up to Mr Patton’s statement that the meeting was adjourned, there was only one substantive point of difference which was highlighted in cross-examination of those present, and in submissions, namely, whether Mr Patton indicated that the date of the adjourned meeting would be announced via the ASX (this issue is addressed below).

129 At the commencement of the Section 249F Meeting, Mr Patton stated that he had received authority from Mr Rathner to chair the meeting, confirmed that a quorum was present, and declared the meeting to be open.

130 Mr Patton then gave an address to the meeting. According to Mr Patton’s minutes of the meeting, he referred to the fact that Keybridge had been placed into voluntary administration on the previous day, and made the following statement:

“I have raised my concerns with the Administrator, Mr Gideon Rathner, about this meeting including, but not limited to, the following:

• The Company has been trying to raise capital since October 2024, with the proceeds to have been applied to meet (i) the extraordinary unbudgeted legal costs associated with the Court actions brought against the Company by WAM Active Limited (WAM), (ii) debt reduction, and (iii) working capital. The Company also had an offer of debt finance, dependent on a capital raise occurring.

• Keybridge notes the significant impact on its business following WAM’s persistent attempts to thwart the Company from raising capital. The most recent injunctive relief obtained by WAM on 31 January 2025 prevents shareholders from approving a capital raising (which includes share applications and subscription monies received [from] WAM), until the matter can be finally heard. The final hearing date had been set down for today, being 10 February 2025, however on 5 February 2025 this date was vacated by the Court, so the matter is now not likely to be determined until mid-March 2025.

• Consequently, the Company has been prevented from raising capital and the conditional offer of debt finance was withdrawn.

• On 6 February 2025, Yowie Group Ltd (via an independent sub-committee) formally demanded the repayment of (i) interest outstanding, under the Reciprocal Loan Facility (Loan) executed on 23 May 2024, of $80,035.12 and (ii) the Loan principal of A$4,483,345, pursuant to clause 4.1 of the Loan, with repayment to be made by 5pm on 7 February 2025. This has not been paid.

• In each of its Monthly NTA Statements issued since March 2024, the Company has made mention of a dispute with the trustee in relation to an investment held by the Company which is currently carried at nil value. It is material. The Administrator has been made aware of the dispute and it will form part of his investigation.

• On 6 February 2025, WAM voted against their own resolution, and voting recommendation, in support of Mr Catalano.

• Keybridge has concerns that Shareholders are not currently properly informed about the matters pertaining to the Company that are relevant for this meeting.

• Mr Rathner was appointed as the Administrator yesterday and will be considering the Administration process.

• Similarly, director nominees may need time to consider whether to withdraw their consents to act as a director, now that the Company is in Administration.

Consequently, consistent with my powers as Chairman under the Company’s Constitution (rule 7.6), it is my decision (on prior notice to the Administrator) that this meeting be adjourned until a later date, with details of the new date and time to be provided in due course (by announcement to ASX).”

131 As regards the final paragraph set out above, Ms Reid’s minutes record Mr Patton as having made the following statements:

“Consistent with my powers as chairman under rule 7.6 of the Constitution, it is my decision that the meeting now be adjourned.

…

I adjourn it to a later date that will be notified in due course.”

132 The main substantive difference between this statement in the two versions of the minutes is that Ms Reid’s minutes do not include the material set out in the parentheses in Mr Patton’s minutes. Each of Mr Reid and Mr Hamilton confirmed in cross-examination that they could not recall Mr Patton adding the words “by announcement to ASX”.

133 It is unlikely that those additional words were said. The words “by announcement to ASX” do not appear in the script which Mr Patton prepared for use at the Section 249F Meeting, either in the version sent to Mr Bolton or in the version with Mr Patton’s handwritten amendments. Each of those versions of the script instead contains a statement, consistent with Ms Reid’s minutes, that it was Mr Patton’s decision to adjourn the meeting “until a later date, with details of the new date to be provided in due course”. Further, Mr Patton appears to have used parentheses to record matters which he did not state at the time, but which he has later added by way of comment when preparing the minutes. An example is as follows:

“Mr Hamilton stated that JP couldn’t adjourn the meeting without nominating a time and date for the resumption of the meeting. JP replied that the Company constitution doesn’t require this and that the Company will inform shareholders of the date of the resumed meeting shortly (which was promptly done via an ASX Announcement).”

The material in parentheses, which refers to an event after the meeting, plainly does not refer to anything said at the meeting.

135 The minutes record that, in response to Mr Patton’s statement that the director nominees needed more time to consider their position, Mr Ravell pointed out that three of the four Proposed Directors were present at the Section 249F Meeting (namely, Mr Ravell, Mr Hamilton and Mr McCathie) and that none had withdrawn his consent to act.

135 Ms Reid’s note records that Mr Hamilton of WAM stated that:

“This is a meeting we called to replace the directors. It has nothing to do with the other things you just described. This is not a proper basis to adjourn the meeting.”

136 Mr Patton’s minutes record that the meeting was “very disorderly and unruly” and that this provided a further reason to adjourn the meeting. However, at the hearing before me, no submissions were advanced to the effect that any such “unruliness” provided an independent basis for the adjournment (and, as noted above, the decision to adjourn was made in advance of the meeting).

137 Ms Reid’s minute of the meeting records that, after Mr Patton stated that the meeting was adjourned, he rose from the table at the front of the room, closed the telephone line and walked towards the door. Mr Hamilton then walked up and took a seat in front of the meeting.

Events at the Section 249F Meeting following the “adjournment”

138 Mr Hamilton stated that: “If Keybridge’s outgoing directors are unwilling or unable to continue the Meeting, the shareholders will elect one of their number to act as Chairman.” Mr Hamilton indicated that he was willing to act as chairperson and Mr Ravell seconded his appointment. Mr Ravell then called Mr Catalano’s phone number, with Mr Catalano participating in the events which followed by that means. Mr Hamilton then read out each of the resolutions in the Section 249F Notice to the meeting. Throughout these events, Mr Bolton and Mr Patton remaining in the meeting room.

139 A representative of Boardroom, the independent observer who had been appointed to the Section 249F Meeting, recorded the voting of shareholders. According to the poll report, each of the resolutions to remove the Incumbent Directors was passed (other than the resolution to remove Mr Catalano), and each of the resolutions to appoint the Proposed Directors was passed. Approximately 58.08% of shareholders voted in favour of the resolutions that passed, and 41.92% against, with none abstaining. [emphasis added]

32. The primary judge also made the following findings at [237]-[242]:

237 … the default position is set out in rule 7.5(a). However, Mr Patton, who was present at the meeting, was not willing to preside as chairperson following his purported adjournment of the meeting. Although he stayed in the room after leaving the chair, he made clear that he was of the view that the meeting had come to an end. According to Mr Hamilton’s note of the meeting, Mr Bolton and Mr Patton stood over Mr Hamilton when he was seated at the front of the meeting “saying ‘What are you doing?’ ‘You’re embarrassing yourself’ and ‘We have closed the meeting’ on numerous occasions”.

238 As regards rules 7.5(b) and (c), there were three directors of Keybridge “present” at the Section 249F Meeting, namely, Mr Bolton and Mr Patton (who were there in person) and Mr Catalano (who was attending by telephone). Plainly, as the evidence above demonstrates, neither Mr Bolton nor Mr Patton was willing to act as chairperson of the Section 249F Meeting after its purported adjournment. However, Senior Counsel for the Director Defendants submitted that “Mr Catalano could have been appointed”, stating as follows:

“In fact, when you look at the minutes, Mr Catalano said that he’d wanted to be chair but that wasn’t what happened. The minutes, I’ll come back to the minutes.

Subrule 7.5(c) deals with what happens if 7.5(b) isn’t complied with, ‘The members must select as chairperson of the meeting another director who is present and willing to act.’ Now, there was no election of Mr Catalano. Or (b), ‘If no other director willing to act is present at the meeting, a member who is present and willing to act.’ That didn’t occur either.

What happened was Mr Hamilton said, ‘Well, here I am, I’m counting the votes,’ after Mr Patton the chairman had adjourned the meeting. In our submission, your Honour would not conclude that that’s a valid meeting. Even if one were to conclude that Mr Patton was wrong in adjourning the meeting or that it was for too long, the remedy, in our submission, is that the meeting be held again.”

239 These submissions are based on incorrect factual premises. Mr Catalano did not indicate that he wanted to be chairperson of the Section 249F Meeting after Mr Patton’s purported adjournment of that meeting. The relevant portion of the minutes to which reference was made in the submissions above records an exchange between Mr Catalano and Mr Patton, prior to the purported adjournment, concerning the circumstances in which Mr Patton had obtained Mr Rathner’s consent to act as chairperson of the meeting:

“Mr Catalano asked why JP was chairing the meeting now that Company was in Administration. JP advised that he had been provided with authority from the Administrator to do so. Mr Catalano asked why he hadn’t been approached to Chair the meeting. JP said this was probably a matter for the Administrator. Notably, JP is the Chair pursuant to Rule 7.5(a) of the Company’s constitution.”

240 When Mr Patton purported to adjourn the meeting, he closed the telephone line (and therefore, Mr Catalano ceased to be present at the meeting).

241 Mr Hamilton did not simply then say: “Well, here I am. I’m counting the votes”. Instead, as recorded in his note of the meeting, he “put [himself] forward to be elected on the floor to continue the unfinished business that was purportedly adjourned by Mr Patton”. He was subsequently elected as chairperson “by way of a shareholder motion on the floor (seconded by Mr Ravell)”. Mr Catalano was then dialled back into the meeting by Mr Ravell on his mobile phone and he remained on the call for the rest of the meeting, without expressing any disagreement either with Mr Hamilton acting as chairperson or with the resolutions being put to a vote by Mr Hamilton.

242 Having regard to the evidence set out above, I am satisfied that, following the purported (and ineffective) adjournment of the Section 249F Meeting by Mr Patton, Mr Hamilton was validly elected as chairperson by the shareholders present at the meeting, in circumstances where no other director who was present at the meeting was willing to act as chairperson. Mr Hamilton then, as chairperson, proceeded to conduct the business of the Section 249F Meeting by reading each of the resolutions and putting them to a vote.

33. On that basis, the primary judge made the declarations from which this appeal has been brought. It will be recalled that ground 1 of Mr Bolton’s appeal challenges the conclusion in [242].

Mr Bolton’s submissions on appeal

34. Mr Bolton submitted that the primary judge erred in finding that Mr Hamilton was validly elected as chair of the meeting. The argument involved the following three strands.

35. First, Mr Bolton complained that the primary judge failed “to account for the fact that, as the interim chair who presided over the purported election of a replacement chair, he could not have been appointed replacement chair of the Impugned Meeting because, at the time of his purported election to that role, Hamilton could not be a nominee for (or be elected to) the role of replacement chair”. He relied on National Australia Bank Ltd v Market Holdings Pty Ltd [2001] NSWSC 253; 161 FLR 1 at [100] and Sandalwood Properties Ltd (Subject to a Deed of Company Arrangement) v Huntley Management Ltd [2018] FCA 1502; 131 ACSR 215 at [99]-[100]. This submission contended that what the primary judge found at [138] amounted to the proposition that “his Honour accepted that Hamilton had acted as interim chair and was then elected as chair”. In response to the proposition that the submission should not be entertained because WAM Active could have sought relief under s 1322 had it been advanced at trial, Mr Bolton maintained that the breach which occurred was substantive and a breach of a common law rule, which could not be cured under either s 1322(2) or (4) of the Corporations Act.

36. Secondly, Mr Bolton contended that the primary judge erred in finding that none of Messrs Bolton, Patton and Catalano was willing to act as replacement chair. Mr Bolton contended that both he and Mr Catalano were willing to act as chair. It was said that Mr Catalano’s query why he had not been approached to act as chair carried with it his willingness so to act. He contended that Mr Catalano, who filed a submitting appearance, should be regarded as being in the same camp as WAM Active, and that his Honour should have drawn the inference that his evidence would not assist.

37. Thirdly, Mr Bolton contended that, in light of rule 7.5(c), the members were only empowered to elect as a chair “a member who is present and willing to act”. He said that Mr Hamilton was not a member. Mr Hamilton was authorised by WAM Active, but Mr Bolton said:

Hamilton was not (and is not) a member of Keybridge and so was not eligible to be elected to the role of chair under Rule 7.5. Further, rule 1.1(f), which is in the following terms, provides no assistance to the plaintiffs:

A reference in this constitution to a member present at a general meeting is a reference to a member present in person or by proxy, attorney or Representative or, except in any rule that specifies a quorum or except in any other rule prescribed by the directors, a member who has duly lodged a valid direct vote in relation to the general meeting under rule 7.7(j).

The effect of that provision is that, where a member (such as WAM) has authorised a representative (such as Hamilton) to attend a meeting in the member’s stead, the member is deemed to be present at the meeting. It does not extend to allow, for the purposes of Rule 7.5(c), a member’s representative to be elected as chair of a general meeting as if they are the member.

38. In his written submissions in reply, Mr Bolton maintained that r 7.9(e) should be construed ejusdem generis, so as not to extend to chairing the meeting.

39. It is not necessary separately to summarise the respondents’ submissions, which have informed what follows.

Consideration

40. There is a measure of overlap between the first and second strands of Mr Bolton’s appeal. However, we shall attempt to deal with each in turn.

41. The starting point is that there is no dispute that Mr Patton invalidly purported to adjourn the meeting. It follows in point of law as well as in fact that the meeting thereafter continued. The entirety of Mr Bolton’s argument is that the resolutions purportedly passed were not valid in law, because Mr Hamilton was not validly appointed chair of that meeting.

The first strand of Mr Bolton’s submissions – was Mr Hamilton an interim chair?

42. The premise of the first strand of Mr Bolton’s argument is that Mr Hamilton was appointed as the interim chair of the meeting, and that the primary judge so found. According to Mr Bolton, it follows that, as interim chair, Mr Hamilton was incapable of nominating himself as chair. But neither aspect of the premise is made out.

43. First, the primary judge made no such finding. It is convenient to reproduce [138], on which Mr Bolton relies, and [241]:

Mr Hamilton stated that: “If Keybridge’s outgoing directors are unwilling or unable to continue the Meeting, the shareholders will elect one of their number to act as Chairman.” Mr Hamilton indicated that he was willing to act as chairperson and Mr Ravell seconded his appointment. Mr Ravell then called Mr Catalano’s phone number, with Mr Catalano participating in the events which followed by that means. Mr Hamilton then read out each of the resolutions in the Section 249F Notice to the meeting. Throughout these events, Mr Bolton and Mr Patton remaining in the meeting room.

… as recorded in his note of the meeting, [Mr Hamilton] “put [himself] forward to be elected on the floor to continue the unfinished business that was purportedly adjourned by Mr Patton”. He was subsequently elected as chairperson “by way of a shareholder motion on the floor (seconded by Mr Ravell)”.

44. There was no challenge to the factual findings. Nothing in the primary judge’s reasons supports the conclusion that Mr Hamilton was appointed an interim chair. That is entirely unsurprising, since it was at no stage suggested by any party that that occurred prior to this appeal being brought.

45. However, Mr Bolton contended that whether or not the primary judge found that Mr Hamilton was appointed as interim chair, that was what in point of law must have occurred, in order for the meeting to appoint a chair. This was made clear in oral submissions:

SIRTES: … it doesn’t matter, of course, whether he was interim chairman for a split second or he was interim chairman for half an hour, we say that’s irrelevant. The fact is that we say at the point in time when he took the step he did, he was effectively, by the approach he was taking and by the conclusory statements that he was making, appointing himself, stepping into the seat for a moment.

46. We do not agree. The reason was captured in the following exchange:

BELL CJ: Why wasn’t he just a member who proposed a motion which was then seconded?

SIRTES: Because before he got to the point, we say, of proposing the motion, we say that there was an anterior step that needed to be undertaken that he didn’t undertake.

47. We do not accept Mr Bolton’s characterisation of what occurred. As the respondents submit, this is not a case where a person was put forward on an interim basis for the purpose of determining who should be the chair. If there is to be a contested election of the chair, then there may well be a need for an interim chair who can act impartially to manage that process, as was held in National Australia Bank Ltd v Market Holdings Pty Ltd at [100]. That is why such a person cannot themselves participate in the election. But the reasoning in National Australia Bank Ltd v Market Holdings Pty Ltd is premised on the proposition that there was a contest as to who would chair the meeting. That is well removed from anything that happened in the present case.

48. On the findings made by the primary judge, which accord with the totality of the evidence summarised above, Mr Patton was unwilling to act as chair, and no person aside from Mr Hamilton expressed any willingness to replace him. Mr Hamilton’s appointment was then approved by the members. There was no thought given to, and no occasion for, the appointment of an interim chair. It is to be borne steadily in mind that the members were bound by Keybridge’s Constitution, and if neither the chairperson nor the deputy chairperson of directors is willing to act as chairperson of a general meeting, then “the members present must elect as chairperson” in accordance with cl 7.5(c). Thus, following the correct assessment that Mr Patton’s purported adjournment was invalid, there was an obligation upon all members to appoint a chair. It is also necessary to bear in mind how few members actually attended the meeting in person. Aside from Mr Hamilton as WAM Active’s representative, and Messrs Bolton, Patton and Mr and Mrs Schwartz who were on the verge of leaving the meeting, the only others in the room were lawyers and the son of Mr Patton along with employees of the registry. Mr Catalano, and an unknown number of other shareholders, had attended by telephone, but their connection had been cut off by Mr Patton immediately upon him purporting to adjourn the meeting.

49. In oral submissions, there was some retreat from the proposition that Mr Hamilton was an interim chair. It was said:

The very fact that Mr Hamilton was, we say, in control, doesn’t matter whether one uses the expression interim chair or not. The very fact that Mr Hamilton had consigned to himself the role of controlling things after the meeting was avowedly adjourned meant that he had, we say, the obligation to readmit Mr Catalano in order for there to be some meaningful determination as to the issue of the chairmanship going forward.

50. That submission conflates two separate points, namely (a) whether there has been compliance with cl 7.5 of the Constitution, and in particular the series of steps which must be satisfied before it becomes possible pursuant to cl 7.5(c)(2) for a member to chair a meeting, and (b) the proposition that where there is a contest as to who will chair the meeting, then there may be a need for an interim chair to manage the process by which that contest is resolved. We shall return below to the question whether Mr Bolton should be permitted to seek to establish, and if so whether he has established, that Mr Bolton was “present and willing to act” for the purposes of cl 7.5(c)(1) of the Constitution. But nothing in the evidence concerning Mr Catalano suggests that there was some contest between Mr Hamilton and anyone else that would engage the principles governing the need for an impartial interim chair.

51. That disposes of the first strand of the argument. However, as noted above, Mr Bolton candidly acknowledged that this submission had not been squarely advanced at trial. It is a matter which, had it been advanced, is apt to have affected the evidence and cross-examination and submissions at trial. Had it been advanced, we have no doubt that the primary judge – whose careful reasons for judgment dealt with all aspects of the submissions which were advanced – would have made findings. That is not a ground that ought to be permitted to be raised for the first time on appeal.

52. In Metwally v University of Wollongong [1985] HCA 28; 59 ALJR 481, the joint judgment said that “[e]xcept in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so”. In Water Board v Moustakas (1988) 180 CLR 491 at 497; [1988] HCA 12 it was said that if “all the facts had been established beyond controversy or where the point is one of construction or of law, then a Court of Appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied”. In Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 at [51], the High Court said that “[I]t would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial” (citations omitted).

53. It is also not necessary to address the respondents’ further submission that any irregularity could have been cured by an order under s 1322, and part of the prejudice that is suffered from the point being raised on appeal for the first time is that they have been deprived of that opportunity. However, we should say something in relation to Mr Bolton’s rejoinder, which was to the effect that s 1322 was not available, because the defect which occurred was both substantive and a matter of common law. We do not accept this, for the following reasons.

1. Section 1322(2) addresses procedural irregularities. Mr Bolton’s submission against the availability of s 1322(2) was that Mr Hamilton as interim chair appointing himself as chair was not a procedural irregularity. If contrary to what we have found above he was an interim chair, on the basis that there might be a contest, it rapidly emerged that there was no contest (not least for the good reason that the outcome of the resolutions to be put to the meeting was pre-ordained by the proxies which had been cast). We favour the view that Mr Hamilton’s subsequent appointment as chair, on the hypothesis that he had been interim chair for a few moments beforehand, is to be regarded in those circumstances as procedural for the purposes of s 1322(2). It is clear beyond argument that there was no substantial injustice having regard to the proxies lodged by a majority of shareholders.

1. Even if we are wrong about that, such that s 1322(2) is unavailable, we do not accept that by reason of what was said in National Australia Bank Ltd v Market Holdings Pty Ltd concerning a principle of “common law” what occurred falls outside the scope of a “contravention of … a provision of the constitution of a corporation” within the meaning of s 1322(4). Mr Bolton’s submission to the contrary involves a false dichotomy. The question posed by s 1322(4) is not answered by saying that the irregularity may be described as contrary to a “common law” rule; instead the only relevant question is whether there is or is not a contravention of the constitution. That question is resolved as a matter of substance, rather than form. The substance of Mr Bolton’s argument is that the procedure for meetings governed by cl 7.5 of Keybridge’s Constitution was not complied with.

The second strand of Mr Bolton’s argument – were Messrs Bolton or Catalano willing to act as chair?

54. Turning to the second strand of Mr Bolton’s submissions, once again, this was not a point advanced at trial, and it is a point which was apt to have affected the evidence and cross-examination and submissions. This is in part because there was no evidence of any such willingness in Mr Bolton’s affidavits, and it is pellucidly plain that Mr Bolton supported Mr Patton’s purported adjournment, repeatedly saying that “we have closed the meeting” and Mr Hamilton “didn’t have power under the Constitution to chair a meeting”.

55. Indeed, this submission is antithetical to the stance taken by Mr Bolton at the meeting, and the case Mr Bolton ran at trial. It should not be permitted to be raised for the first time on appeal.

56. Even so, we address Mr Bolton’s submissions on their merits. Mr Bolton’s argument turns on whether either or both of Messrs Bolton and Catalano were “present and willing to act” to chair the meeting, and whether Mr Hamilton was required to, and did, make any inquiries of those men to that effect.

57. Turning first to Mr Bolton, it is true that, after some five resolutions had been put to the meeting now chaired by Mr Hamilton, Mr Bolton is recorded in the minutes as stating that he was a deputy chairman and entitled to chair the meeting. But that statement does not support the conclusion that he put himself forward as chair at the relevant time – namely, when it was necessary to fill the vacuum created by Mr Patton’s invalid adjournment. Moreover, the proposition that Mr Bolton was willing to assume the chair in order to put the resolutions to the meeting does not withstand scrutiny. The outcome of the resolutions had been determined by WAM Active’s and Mr Catalano’s proxies. Mr Bolton evidently did not wish to be removed as a director. Yet once the meeting proceeded, that was the inevitable outcome of the meeting. There is absolutely no basis to infer that Mr Bolton would have been willing to act as chair.

58. Perhaps it was because of the considerations in the previous paragraph that Mr Bolton focussed attention on the position of Mr Catalano. It was put that when Mr Patton terminated Mr Catalano’s telephone connection, at the same time as he purported to adjourn the meeting, the result was that Mr Catalano was wrongly excluded from the meeting. It is not necessary to express a view on that point, but let it be assumed, favourably to Mr Bolton, that that was so. It was then said that Mr Catalano was excluded at precisely the time that Mr Hamilton made himself chair, with the consequence of prejudicing the interests of Mr Catalano, and his entitlement as a director to chair the meeting. It was also said that when Mr Hamilton said that if the outgoing directors were unwilling to chair he would do so, that excluded Mr Catalano, and confirmed that Mr Hamilton had no intention or permitting a director to chair the meeting.

59. We cannot accept these submissions.

60. First, no doubt because this was not in issue before the primary judge, there is some factual uncertainty about precisely when Mr Catalano was excluded and when he was reconnected. It is clear from the reference in the minutes signed by Mr Hamilton that after Mr Patton disconnected him, his telephone connection was resumed and continued for another 6 minutes and 52 seconds, from which it is clear that he was disconnected only briefly.

61. Evidently Mr Catalano was participating in the meeting in the immediate aftermath of Mr Patton first advising that he was going to adjourn the meeting – this is when he is recorded as criticising the appointment of the administrator. Evidently Mr Catalano was present when Mr Hamilton said, before the purported adjournment, that he objected to the adjournment and “You are not adjourning for a proper purpose. If you try to adjourn the meeting, we will elect a chair and be holding it with or without you”.

62. It is not clear whether Mr Catalano was on the line when, after the purported adjournment a few seconds later, Mr Hamilton addressed the room to say “If Keybridge’s outgoing directors are unwilling or unable to continue the Meeting, the shareholders will elect one of their number to act as Chairman”. But nothing turns on this.

63. Mr Catalano had no reason to seek to act as chair. He was physically absent from the meeting, which would make it very difficult (to say the least) for him to perform that role. Further, the outcome of the motions was, to his knowledge, assured. He had evidently fallen out on this issue with Mr Bolton and Mr Patton, and he was aware that WAM Active (the 43% shareholder) had voted its proxy forms in precisely the same way that he (the 10% shareholder) had voted.

64. It was said, by reference to Mr Hamilton’s statement “if Keybridge’s outgoing directors are unwilling or unable to continue the Meeting” that Mr Catalano was excluded:

in the way that Mr Hamilton even introduced the issue, he had already, we would respectfully submit, excluded Mr Catalano from the process by the introductory words that he used in addressing his remarks to the so‑called outgoing directors. 

65. But a more natural construction of Mr Hamilton’s words in the circumstances of the meeting is that he was fully conscious that Mr Catalano’s interests were aligned with those of WAM Active, and that Mr Catalano could not readily chair the meeting when he was present only by telephone, and that he had no reason to object to Mr Hamilton’s chairing of the meeting.

66. Mr Bolton contended for there being a positive obligation upon Mr Hamilton to canvas with the directors whether they were willing to act. But it needs to be borne in mind that Mr Bolton was maintaining that the meeting had been adjourned, and doing so in the certain knowledge that he would be removed as director if the resolutions – which were the only business to be conducted, and for which purpose the meeting had been convened – were put to the meeting. It is with respect quite unreal to think that after Mr Patton and Mr Bolton had left the table at the front of the meeting, and were at the doorway watching and listening to what was occurring, Mr Hamilton needed explicitly to ask whether they were willing to chair the meeting.

67. In any event, a natural reading of Mr Hamilton’s words “If Keybridge’s outgoing directors are unwilling or unable to continue the meeting …” is that they provided an opportunity to Messrs Patton and Bolton to correct the obvious conclusion to be drawn from their conduct and state that they were both willing and able to continue the meeting and put forward the resolutions.

68. It is also quite unreal for Mr Hamilton to need to think that after Mr Catalano had forcefully disagreed with Mr Patton, and had voted his 10% in favour of removing Messrs Bolton, Patton and Dukes, and knew that Mr Hamilton proposed to chair a meeting if Mr Patton wrongfully adjourned it as occurred, that Mr Hamilton needed to reconnect Mr Catalano and ask him whether he was willing to chair the meeting. It is noteworthy that when Mr Catalone was reconnected he raised no query about whether Mr Hamilton could or should be chairing the meeting, and did not suggest that he should be undertaking the task.

69. Finally, even if the foregoing is wrong, then it is clear that any failure to raise those matters with Messrs Bolton, Patton or Catalano was a “defect, irregularity or deficiency in notice” within the meaning of s 1322(1)(b) and therefore procedural. There was no injustice, let alone substantial injustice, and so s 1322(2) would apply. As Mr Sirtes SC accepted, “all roads were inevitably leading to Rome” in terms of the outcome on the resolutions to be put to the meeting.

The third strand of Mr Bolton’s argument – was Mr Hamilton eligible to chair the meeting?

70. Mr Bolton’s third point is bad in law. What follows responds to Mr Bolton’s written submissions, which were not developed orally.

71. Mr Hamilton was WAM Active’s authorised representative. Rule 1.1(f) read with the definition of “Representative” means that “member” includes such a representative. Rule 7.9(e) gives a representative “the same rights to speak, demand a poll, join in demanding a poll or act generally at the meeting as the member would have had if the member was present”. Against this conclusion, Mr Bolton sought in his submissions in reply to read r 7.9(e) ejusdem generis so that it did not apply to chairing a meeting of members. There is no basis for displacing those definitions, or confining r 7.9(e) more narrowly than its ordinary language. In particular, there is no reason to reach the result that a corporate shareholder cannot by its authorised representative exercise all of the rights it enjoys as a member that a natural person shareholder enjoys. Further, Mr Bolton’s submission produces the unpalatable result that a corporate member’s authorised representative was incapable of being elected chair. The foregoing is wholly consistent with the conferral of power by s 250D of the Corporations Act upon an individual appointed by a body corporate as its representative “to exercise all or any of the powers the body corporate may exercise … at meetings of a company’s members”, and it is with respect difficult to reconcile Mr Bolton’s submission with the breadth of s 250D.

Conclusion and orders

72. Mr Bolton supplied evidence that the appeal involved property or civil rights amounting to or of the value of $100,000 or more, in light of which the respondents did not dispute that his appeal lay as of right. That may be accepted. However, for the reasons given above, the appeal was dismissed. The order for costs made on 8 May 2025 followed the event.

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Decision last updated: 12 May 2025