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

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Yowie Group Ltd v Keybridge Capital Ltd [2025] NSWCA 142
Hearing dates: 26 June 2025
Decision date: 26 June 2025
Before: Leeming JA
Decision:
1. Dismiss the notice of motion filed 25 June 2025.
2. Order that there be no discontinuance or dismissal of the appeal without leave of the Court.
3. The appellant to pay the respondent’s costs of the notice of motion.
4. Set down the appeal for 10 July 2025.
5. The appellant to file and serve written submissions by 1 July 2025.
6. The respondent to file and serve written submissions by 5 July 2025.
7. The appellant to file and serve submissions in reply by 4pm on 8 July 2025.
8. Direct the Registrar to make other directions as to the preparation of appeal books and otherwise readying the matter for hearing.
9. Liberty to apply on one business day’s notice to Justice Leeming by his Associate, or the Registrar.

Catchwords:
PRACTICE – interlocutory relief pending appeal – appellant a subsidiary of respondent – respondent called members’ meeting to replace directors – primary judge determined meeting valid and found appellant’s efforts to adjourn it motivated by improper purpose – appellant had also made off-market takeover offer for respondent, conditional on its directors not being removed – appellant sought injunctive relief pending appeal preventing meeting from occurring – consideration of strength of appeal – whether primary judge erred concerning exclusive jurisdiction of Takeovers Panel – whether primary judge erred concerning appellant’s Constitution – whether primary judge erred in failing to find respondent motivated by improper purpose – prospects of success weak at best – consideration of balance of convenience – significance of failure by appellant’s directors to become parties or offer any undertaking – ongoing breach of s 201A(2) of Corporations Act 2001 (Cth) – unchallenged finding that earlier attempt to vacate meeting for improper purpose – costs thrown away – interlocutory relief refused

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Corporations Act 2001 (Cth), ss 195, 201A, 224, 225, 237, 249D, 249F, 249Q, 659B

Cases Cited:
2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32
Bolton v WAM Active Ltd (No 2) [2025] NSWCA 99
Contouris v Kallos [2008] NSWSC 840; 67 ACSR 543
In the matter of U&D Coal Ltd [2014] NSWSC 1128
In the matter of Yowie Group Ltd [2025] NSWSC 648
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Owner of the Ship “Shin Kobe Maru” v Empire Shipping Co Ltd (1994) 181 CLR 404; [1994] HCA 54
Rana v Survery [2012] NSWCA 394
Re Yowie Group Ltd [2025] NSWSC 524

Category: Procedural rulings
Parties: Yowie Group Ltd (Appellant/Applicant)
Keybridge Capital Ltd (Respondent)
Representation:

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.

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Details

Case: [2025] NSWCA 142
Decision Date: 26 June 2025

CaseChat Overview and Summary

The appeal before Leeming JA concerned an application for interlocutory relief by Yowie Group Ltd (the appellant) against Keybridge Capital Ltd (the respondent). The dispute arose from the respondent's decision to call a members' meeting to replace directors of the appellant, a subsidiary of the respondent. The appellant sought to prevent this meeting from proceeding pending its appeal against a primary judge's decision that the meeting was valid and that the appellant's attempts to adjourn it were motivated by an improper purpose.

The court was required to determine several legal issues, including whether the primary judge erred in their findings regarding the exclusive jurisdiction of the Takeovers Panel, the interpretation of the appellant's Constitution, and whether the respondent was motivated by an improper purpose. Crucially, the court had to assess the strength of the appellant's appeal and the balance of convenience in granting the interlocutory relief sought.

Leeming JA found the appellant's prospects of success on appeal to be weak at best. His Honour considered the significance of the appellant's directors not becoming parties to the proceedings or offering any undertaking, the ongoing breach of s 201A(2) of the Corporations Act 2001 (Cth), and an unchallenged finding that an earlier attempt to vacate the meeting was for an improper purpose. The court also noted the costs thrown away by the appellant's actions. Consequently, the application for interlocutory relief was refused.

Orders

Orders of the court

1. Dismiss the notice of motion filed 25 June 2025.

2. Order that there be no discontinuance or dismissal of the appeal without leave of the Court.

3. The appellant to pay the respondent’s costs of the notice of motion.

4. Set down the appeal for 10 July 2025.

5. The appellant to file and serve written submissions by 1 July 2025.

6. The respondent to file and serve written submissions by 5 July 2025.

7. The appellant to file and serve submissions in reply by 4pm on 8 July 2025.

8. Direct the Registrar to make other directions as to the preparation of appeal books and otherwise readying the matter for hearing.

9. Liberty to apply on one business day’s notice to Justice Leeming by his Associate, or the Registrar.

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:	Yowie Group Ltd v Keybridge Capital Ltd [2025] NSWCA 142
Hearing dates:	26 June 2025
Decision date:	26 June 2025
Before:	Leeming JA
Decision:	1. Dismiss the notice of motion filed 25 June 2025. 2. Order that there be no discontinuance or dismissal of the appeal without leave of the Court. 3. The appellant to pay the respondent’s costs of the notice of motion. 4. Set down the appeal for 10 July 2025. 5. The appellant to file and serve written submissions by 1 July 2025. 6. The respondent to file and serve written submissions by 5 July 2025. 7. The appellant to file and serve submissions in reply by 4pm on 8 July 2025. 8. Direct the Registrar to make other directions as to the preparation of appeal books and otherwise readying the matter for hearing. 9. Liberty to apply on one business day’s notice to Justice Leeming by his Associate, or the Registrar.
Catchwords:	PRACTICE – interlocutory relief pending appeal – appellant a subsidiary of respondent – respondent called members’ meeting to replace directors – primary judge determined meeting valid and found appellant’s efforts to adjourn it motivated by improper purpose – appellant had also made off-market takeover offer for respondent, conditional on its directors not being removed – appellant sought injunctive relief pending appeal preventing meeting from occurring – consideration of strength of appeal – whether primary judge erred concerning exclusive jurisdiction of Takeovers Panel – whether primary judge erred concerning appellant’s Constitution – whether primary judge erred in failing to find respondent motivated by improper purpose – prospects of success weak at best – consideration of balance of convenience – significance of failure by appellant’s directors to become parties or offer any undertaking – ongoing breach of s 201A(2) of Corporations Act 2001 (Cth) – unchallenged finding that earlier attempt to vacate meeting for improper purpose – costs thrown away – interlocutory relief refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Corporations Act 2001 (Cth), ss 195, 201A, 224, 225, 237, 249D, 249F, 249Q, 659B
Cases Cited:	2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 Bolton v WAM Active Ltd (No 2) [2025] NSWCA 99 Contouris v Kallos [2008] NSWSC 840; 67 ACSR 543 In the matter of U&D Coal Ltd [2014] NSWSC 1128 In the matter of Yowie Group Ltd [2025] NSWSC 648 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 Owner of the Ship “Shin Kobe Maru” v Empire Shipping Co Ltd (1994) 181 CLR 404; [1994] HCA 54 Rana v Survery [2012] NSWCA 394 Re Yowie Group Ltd [2025] NSWSC 524
Category:	Procedural rulings
Parties:	Yowie Group Ltd (Appellant/Applicant) Keybridge Capital Ltd (Respondent)
Representation: