Keybridge Capital Limited v Wam Active Limited

FEDERAL COURT OF AUSTRALIA

Keybridge Capital Limited v WAM Active Limited [2023] FCAFC 194  

Appeal from:

Keybridge Capital Limited v WAM Active Limited [2023] FCA 339

File number(s):

VID 347 of 2023

Judgment of:

O’CALLAGHAN, HALLEY AND O’SULLIVAN JJ

Date of judgment:

12 December 2023

Catchwords:

CORPORATIONS – appeal from decision of primary judge that respondent’s directors did not act for an improper purpose in resolving to move a general meeting from an in-person meeting to an online meeting – no appellable error – appeal dismissed

Legislation:

Corporations Act 2001 (Cth) s 249F

Cases cited:

Advance Bank Australia Ltd v FAI Insurances Ltd (1987) 9 NSWLR 464

Central Exchange Ltd v Rivkin Financial Services Ltd [2004] FCA 1546; (2004) 213 ALR 771

Fox v Percy (2003) 214 CLR 118

Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679

Warren v Combes (1979) 142 CLR 531

Division:

General Division

Registry:

Victoria

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

32

Date of hearing:

29 November 2023

Counsel for the Appellant:

MA Robins KC with LJS Molesworth

Solicitor for the Appellant:

Allen and Overy

Counsel for the Respondent:

PA Neskovcin KC with S Hooper

Solicitor for the Respondent:

Mills Oakley

ORDERS

VID 347 of 2023

BETWEEN:

KEYBRIDGE CAPITAL LIMITED (ACN 088 267 190)

Appellant

AND:

WAM ACTIVE LIMITED (ACN 126 420 719)

Respondent

ORDER MADE BY:	O’CALLAGHAN, HALLEY AND O’SULLIVAN JJ
DATE OF ORDER:	12 DECEMBER 2023

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant file a written submission about costs within 7 days of this order, and the respondent reply within 14 days of this order.

3.The question of costs be determined on the papers.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. For reasons which we will explain, this is an appeal against carefully considered reasons of a judge of this Court, in respect of which the appellant could not identify any appellable error.  The appeal must fail for reasons that can be explained in short order.

2. The principal issue on this appeal is whether the directors of the respondent, WAM Active Limited (WAM), effectively exercised their power to change the venue of a general meeting called by the appellant, Keybridge Capital Limited (Keybridge), pursuant to s 249F of the Corporations Act 2001 (Cth) (Corporations Act). 

3. There was no dispute about the objective facts.

4. As the primary judge explained, WAM is a public company listed on the Australian Securities Exchange (ASX).  Keybridge held 7.2% of the voting shares in WAM.

5. On 7 February 2022, Keybridge issued an ASX announcement stating its intention to make a conditional off-market takeover bid for WAM.

6. The same day, WAM wrote to Keybridge and issued an ASX announcement stating that it “[did] not consider that the Proposed Bid is genuine”.

7. On 14 February 2022, Keybridge’s solicitors sent a notice titled “Notice of Meeting…