Bolton v WAM Active Ltd (No 2)

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.