Yowie Group Ltd and Bolton v Keybridge Capital Ltd (No 2)

[2025] NSWCA 167

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Yowie Group Ltd and Bolton v Keybridge Capital Ltd (No 2) [2025] NSWCA 167

Hearing dates:

24 July 2025

Date of orders:

24 July 2025

Decision date:

24 July 2025

Before:

Bell CJ at [1]-[19], [22];
Payne JA at [20]; and
Stern JA at [21].

Decision:

Application dismissed with costs.

Catchwords:

CIVIL PROCEDURE – Application to adjourn hearing of urgent appeal – Where notice of motion filed day prior to the hearing – Where Applicant’s counsel briefed one day prior to hearing due to previous counsel returning brief as a result of Applicant’s alleged failure to hold moneys on trust to secure the previous counsel’s fees – Where Applicant’s previous counsel had settled submissions and amended notice of appeal – Application dismissed

Legislation Cited:

N/A

Cases Cited:

Yowie Group Ltd v Keybridge Capital Ltd [2025] NSWCA 142

Texts Cited:

N/A

Category:

Procedural rulings

Parties:

Yowie Group Ltd (First Appellant)
Nicholas Francis John Bolton (Second Appellant)
Keybridge Capital Ltd (Respondent)

Representation:

Counsel:

L Judd (Second Appellant)
J S Emmett SC, D Krochmalik and D Monteith (Respondent)

Solicitors:

Bridges Lawyers (Second Appellant)
Mills Oakley (Respondent)

File Number(s):

2025/243020

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity – Corporations List

Citation:

[2025] NSWSC 648

Date of Decision:

20 June 2025

Before:

Black J

File Number(s):

2025/213618

EX TEMPORE JUDGMENT (Revised)

1. BELL CJ: An appeal from a judgment of Black J (In the matter of Yowie Group Ltd [2025] NSWSC 648) given in urgent circumstances on 20 June of this year was filed by Yowie Group Ltd (Yowie) on 25 June, together with a Notice of Motion seeking to enjoin the holding of a meeting of Yowie that was due to take place on Friday 27 June. On 26 June, Leeming JA heard and determined the Notice of Motion, refusing to enjoin the holding of the meeting: Yowie Group Ltd v Keybridge Capital Ltd [2025] NSWCA 142.

2. The appeal was set down urgently for hearing on 10 July and was the subject of detailed directions by Leeming JA, both following the refusal of the injunction and at a directions hearing held on 3 July.

3. On 9 July Leeming JA, at a further directions hearing, was informed that Yowie, which had filed the appeal, no longer wished to pursue it, but that a former director, Nicholas Francis John Bolton, did wish to pursue the appeal. Mr Bolton was joined as a second appellant on the understanding that he would take carriage of the appeal and that Yowie, although remaining a party, would no longer take an active role.

4. Those circumstances meant that the appeal set down to be heard on 10 July did not go ahead, but a new date for the hearing of the appeal, namely today, was fixed, with further detailed directions being made by Leeming JA both on 9 July and then on 16 July, at which point Mr Blake Shaw of Bridges Lawyers appeared before his Honour, and indicated that senior counsel and junior counsel, Mr Green SC and Mr Ford, had been briefed for the hearing of the appeal on 24 July. Written submissions signed by those counsel were prepared together with an Amended Notice of Appeal dated and served on 16 July. The submissions were e-filed on 17 July. On Monday 21 July, submissions by the Respondent were filed.

5. Yesterday, on 23 July, a Notice of Motion was sent to Leeming JA’s chambers together with an affidavit of Mr Shaw sworn on 23 July. The Notice of Motion sought an order that the hearing of this appeal today be vacated, and a consequential order for an extension of time to file submissions in reply.  Mr Shaw’s affidavit recorded the fact that on 21 July, both Mr Green and Mr Ford had returned their briefs in this matter. Mr Green’s email, dated 21 July at 5.16pm, read as follows:

“Dear Blake [referring to Mr Shaw],

As indicated, as the stipulated funds have not been placed into trust, despite numerous extensions, I hereby return my brief.

I will make the files available for collection from my chambers when it’s convenient to you.”

6. I would infer that the reference to “despite numerous extensions” is a reference to Mr Green having afforded his instructing solicitor extensions of time to confirm that money had been received in trust to account for counsels’ fees.

7. Mr Ford's email of the same day, 21 July, 5.31pm, recited that, “Given the funds have not been deposited into trust, I am handing back my brief”. On the following day, Mr Ford raised a potential conflict issue given that he and Mr Green had previously acted for Yowie at trial. This was not an issue that was raised by Mr Ford the previous day when he returned his brief, nor was it an issue that evidently had prevented him taking instructions and participating in the preparation of written submissions on Mr Bolton's behalf for the purposes of the appeal. In any event, the principal reason for the return of the briefs by Mr Green and Mr Ford appears to have been because Mr Bolton did not provide adequate funds for their services.

8. On 22 July, namely Tuesday of this week, although this was not referred to in Mr Shaw's affidavit, he filed a Notice of Intention to File Notice of Ceasing to Act. Paragraph 1 of that notice informed Mr Bolton and the Court that:

“After 28 days from the date of service of this notice, I, Blake David Shaw will file in the registry of the court and serve a notice that I have ceased to act as your solicitor in these proceedings.”

9. The Court was informed today in the course of the application to vacate the hearing that, whatever had caused that Notice of Intention to File Notice of Ceasing to Act to be filed, no longer applied, and the Notice would be withdrawn.

10. When the Notice of Motion seeking to vacate the hearing of the appeal was forwarded to Leeming JA’s chambers yesterday, Mr Shaw and the legal representatives for Keybridge Capital Ltd (Keybridge), the Respondent to the Notice of Motion, were informed by email dated 23 July that the motion would be heard this morning and that the parties should be prepared to argue the appeal in the event that the Notice of Motion was dismissed. Mr Judd of counsel was briefed to advance arguments in support of the Notice of Motion and appeared before us this morning. He also indicated that he was briefed to appear on the appeal in circumstances where Mr Green and Mr Ford had withdrawn.

11. Mr Judd made a number of arguments in support of the application to vacate the hearing. He raised the fact that a Notice of Contention had been filed on 21 July by Keybridge which had not been the subject of any response by Mr Bolton because of the timing of the filing of the Notice of Contention. I will return to the significance of that matter shortly. He intimated that he had received some instructions which may or may not lead to a desire to further amend the Amended Notice of Appeal. The nature of those instructions was vague, and there is no application to amend the Amended Notice of Appeal before us. Interpolating there, one should note that the Amended Notice of Appeal was evidently settled by Mr Green of senior counsel, presumably on the basis of full instructions from Mr Bolton.

12. Mr Judd also foreshadowed that an issue which had arisen as a result of written submissions filed by Keybridge was as to whether the proceedings were properly constituted in circumstances where Keybridge had raised a question as to the proper standing of Mr Bolton. Mr Judd indicated that Mr Bolton was not personally a shareholder of the company, although it appeared that companies which he controlled or had an interest in may have been. That issue, namely the question of standing and the possible need to amend the constitution of the proceedings, was removed when Mr Emmett SC (who appeared on behalf of Keybridge) indicated that he would not press any question as to Mr Bolton’s standing.

13. Part of Mr Judd’s submissions seemed to proceed on a misconception that leave was still required for Mr Bolton to be a party to this appeal. I make no personal criticism of Mr Judd given his recent entry into the matter, but those submissions were misconceived in circumstances where Leeming JA had, in a previous directions hearing on 9 July, directed that Mr Bolton become the second appellant in the proceedings, and made case management orders on 16 July consistent with that having occurred.

14. Returning to the question of the Notice of Contention, in the course of argument, Payne JA raised with Mr Judd the possibility that if he were not in a position to deal with the Notice of Contention today, if it ultimately became necessary to deal with the Notice of Contention, he could be given that opportunity to do so in writing, and I did not understand Mr Judd to demur from the common sense which underpinned this proposed way forward in the event that the Notice of Contention became forensically significant.

15. The application for the vacation of the hearing of the appeal this morning was resisted by Mr Emmett on behalf of Keybridge. He provided the Court with a chronology of this matter, and without going into the full detail of that chronology, some key points should be made. These proceedings were commenced in the Corporations List of this Court in June and were dealt with with extraordinary expedition by Black J, resulting in his Honour's detailed judgment which is the subject of the appeal. A Notice of Appeal was filed five days after the judgment, and the Notice of Motion seeking injunctive relief was also filed on the same day. It was heard the following day, and resulted in an ex tempore judgment by Leeming JA.

16. The matters in issue between the parties affect the composition of the board of a public company, albeit that, as the Court was informed, trading in the shares of that company on the Australian Stock Exchange is currently suspended. Notwithstanding that, disputes over the composition of the board of a public company should be resolved as expeditiously as possible in the public interest. That is why Leeming JA gave very close personal attention to the case management of these proceedings, and in particular, the appeal. He did so on no less than three occasions, facilitating Mr Bolton’s entry into the proceedings, providing procedural directions with which Mr Bolton's legal representatives agreed, and indeed complied with, until Monday of this week.

17. Mr Bolton's arguments in support of his Amended Notice of Appeal have been set out in some considerable detail by experienced senior counsel and junior counsel in written submissions. Notwithstanding two affidavits which have been filed by Mr Shaw, the instructing solicitor for Mr Bolton, no explanation has been given to the Court as to why it was that, notwithstanding apparent accommodation by counsel, moneys were not put in trust to secure their attendance at the hearing of the appeal.

18. In circumstances where detailed submissions have been exchanged and where the person responsible, apparently, for the withdrawal of counsel is Mr Bolton himself, the Court is not sympathetic to his application to vacate the hearing of this appeal, especially given the public interest considerations in quickly resolving a matter of commercial importance. It is possible to accommodate the difficulty raised by Mr Judd in relation to the Notice of Contention in the way I have already outlined; namely, by giving him an opportunity, if the necessity arises, to respond in writing in relation to the Notice of Contention. Whether or not that necessity arises will depend on the success or otherwise of Mr Bolton's grounds of appeal. Plainly enough, the Notice of Contention will fall away if the grounds of appeal are unsuccessful.

19. In those circumstances, in my view, the application for an adjournment should be refused.

20. PAYNE JA: I agree with the Chief Justice. In particular, I agree it would be antithetical to the speedy determination of important commercial matters by this Court to accede to the present adjournment application, and for the reasons his Honour gives, I too would dismiss the notice of motion.

21. STERN JA: I also agree with the Chief Justice, and with the additional observations of Payne JA.

22. BELL CJ: The order of the Court then is that the Notice of Motion to adjourn is dismissed with costs.

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Decision last updated: 30 July 2025