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[2026] NSWCA 171
procedural. The Court noted that Keybridge had established an entitlement to at least $18,500 on the evidence supplied in chief; granted Mr Bolton leave to file and serve responsive submissions or evidence...
Keybridge sought the $25,000 that Mr Bolton had paid into Court to secure his undertaking to pay administration costs during a stay pending appeal. The Court calculated that the administrator’s relevant costs established on Keybridge’s initial evidence exceeded $18,500 after dealing with particular time entries, GST and a global discount. The Court also considered further evidence of legal costs, despite accepting it was not strictly reply evidence, because excluding it could lead to delay and further expense. Mr Bolton was given seven days to respond. Although the reasons say the further evidence showed costs above $25,000, the formal orders did not direct release of the full security: they recorded the minimum established on the evidence in chief and made further procedural orders.
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2,172 words · generated 08/10/2026
3 cited instruments linked from this judgment.
This was a procedural motion about money paid into Court as security, not a rehearing of the underlying dispute about the appointment or conduct of Keybridge Capital Ltd’s voluntary administration. Leeming JA dealt with the motion on the papers.
Keybridge’s directors resolved to appoint Mr Rathner as voluntary administrator on 9 February 2025. That was shortly before a meeting called by Keybridge’s largest shareholder, WAM Active Ltd, which was to consider removing board members, including Mr Bolton. The primary judge found that an improper purpose for the appointment had not been established, but found that an asserted adjournment of the members’ meeting was invalid. On 14 April 2025, the primary judge ordered that the administration end immediately ([2]).
That order was stayed briefly to allow an application for interlocutory relief pending Mr Bolton’s appeal. On 17 April 2025, Leeming JA continued the stay on conditions. One condition was Mr Bolton’s undertaking to pay the administration costs for the period of the stay if his appeal failed. Another required him to pay $25,000 into Court as security for that undertaking and for certain payment obligations of Keybridge ([3]–[5]). The reasons explained that the money was the price of the stay sought by Mr Bolton ([5]).
The appeal was heard on 8 May 2025 and dismissed. The stay was discharged at the conclusion of the hearing ([7]). Keybridge later applied for the whole $25,000 security to be released to it. The Court emphasised that the motion did not determine the extent of Mr Bolton’s underlying liability; the issue was whether Keybridge had established entitlement to draw on the security ([8]–[9]).
The judgment’s approach had two stages: quantify what the initial evidence established, then address whether to consider additional evidence of legal costs.
For the initial evidence, Leeming JA used the administrator’s remuneration-report line items. The judgment records that there was no reason put forward to doubt their reliability or admissibility ([16]). It examined the entries associated with 17 April, the date the stay was granted. The Court considered it probable that Mr Rathner’s 4.5 hours on that day were mostly spent before or during the hearing, and disallowed that $3,195 item. It allowed two other entries, of $355 and $284, because their descriptions suggested work after the stay was granted. It disallowed three entries attributed to Ms Ng because their descriptions suggested work before the stay or were too unclear ([19]–[21]).
The Court treated 8 May differently. It accepted the claimed $3,342 for that day, including time associated with the appeal hearing and administrative steps to bring the administration to an end. It explained that an order ending an administration “immediately” did not require the administrator to stop work at once or prevent him from notifying ASIC that the administration was over ([22]). It also excluded a disbursement dated 15 April, but included a $263.19 disbursement dated 6 July 2019, which it described as a cost of the administration ([23]).
The judgment’s arithmetic produced $18,645.19 in charges for work the Court was satisfied had been undertaken during the period covered by the undertaking ([24]). It did not allow a separate Schedule E amount of $2,130 because five of its six entries appeared to duplicate entries already counted in Schedule D. The Court was disinclined to allow the remaining entry given that apparent duplication ([25]).
The Court rejected Mr Bolton’s argument that the relevant amount should exclude GST because Keybridge might claim input tax credits. It considered the question to be whether the GST-inclusive amount charged by the administrator was a cost of the administration covered by the undertaking. The administrator had made taxable supplies, had to collect and remit GST, and could sue to recover fees including GST. On that reasoning, GST formed part of Keybridge’s indebtedness to the administrator ([27]).
The Court also rejected the argument that the whole $32,500 negotiated discount should be allocated to the secured period. It treated the 4 July 2025 email as a global compromise in exchange for prompt approval and payment ([12]–[14]). It inferred that an invoice dated 10 July for $314,216 was likely the invoice referred to in the email. The judgment calculated the discount rate as approximately 9.37 per cent: $32,500 divided by $314,216 plus $32,500 ([29]). Applying that discount to its calculation, including GST on the relevant charges but excluding the disbursement from the GST calculation, the Court stated that Keybridge had established an amount exceeding $18,500 on the evidence in chief ([31]).
A separate procedural question concerned Keybridge’s further evidence of legal costs. Keybridge sought to rely on a counsel’s invoice and an invoice from the administrator’s solicitors for work spanning dates before and after the secured period ([33]). The judgment said that, if that evidence could be considered, the administration costs would exceed $25,000 ([34]). Leeming JA accepted that it was not strictly evidence in reply and that Keybridge retained the onus to establish entitlement ([36], [39]).
The Court nevertheless considered the further evidence, taking account of the case-management objectives in ss 56 and 60 of the Civil Procedure Act 2005 (NSW). It reasoned that refusing the evidence could leave Keybridge able to file another motion, causing delay and expense. Mr Bolton’s assertions of serious prejudice and unfairness were not elaborated. The orders gave him seven days to identify any prejudice or natural justice concern through responsive submissions or evidence ([37]–[42]). This was a case-specific procedural decision, not a general rule that further evidence may always be introduced after a party has presented its case.
The judgment does not set out a comprehensive account of the law before this decision, nor does it purport to alter the law governing security or undertakings. It applies the particular undertaking and security order made on 17 April 2025 to the evidence before the Court.
The decision’s principal procedural point is that the applicant for release retained the burden of establishing entitlement. Leeming JA expressly accepted that the onus remained on Keybridge throughout ([39]). The Court’s consideration of further evidence did not transfer that burden to Mr Bolton. Rather, the Court addressed whether evidence that was not strictly in reply could be considered in this procedural setting, with an opportunity for him to respond.
For the substance of release, the judgment referred to 123 259 932 Pty Ltd v Cessnock City Council (No 4) [2021] NSWSC 1598 at [6] and Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (No 2) [2010] NSWSC 490 at [41] as examples concerning release of security where the secured liability exceeds the security ([38]). The judgment does not reproduce those decisions’ reasoning in detail, so its treatment of them should not be extended beyond the proposition for which Leeming JA cited them.
The judgment also says that a motion for release does not determine total liability and does not prevent a later motion supported by different evidence. It states that there could be no issue estoppel or res judicata arising from such a later application in the circumstances described ([40]). That observation is tied to the limited question before the Court: whether the established administration costs exceeded $25,000.
The practical result is also important. Although the reasons state that the further evidence supported costs substantially exceeding $25,000, the formal order did not direct release of the full security. It noted an entitlement of at least $18,500 on the evidence supplied in chief, gave Mr Bolton time to respond to the further evidence, and provided for costs submissions ([42]–[44]). The formal orders therefore preserve a distinction between what was established on the initial evidence and the further material considered in the reasons.
At [9], the Court said: “The present application is for the release of the entirety of the security. It does not determine the extent of Mr Bolton’s liability.” In plain English, the motion concerned access to the fund, not a final calculation of every cost Mr Bolton might owe.
At [27], the Court framed the GST issue as whether the GST-inclusive amount charged by the administrator was part of the “costs of the administration”. It did not decide the issue by asking whether GST represented a net economic cost to Keybridge after any input tax credits. The reasoning focused on the administrator’s right to charge and recover the GST-inclusive fees.
At [39], Leeming JA accepted both that the further evidence was not strictly evidence in reply and that Keybridge carried the onus. This is significant because the Court did not characterise the evidence as ordinary reply material or shift the evidentiary burden to Mr Bolton.
At [42], the Court stated that it was satisfied, on the further material, that the costs substantially exceeded $25,000, while its orders allowed Mr Bolton to respond. The reasons and orders must be read together: the reasons explain the Court’s assessment of the evidence then before it, while the orders preserve a procedural opportunity to address the additional affidavit.
The judgment is most relevant to a situation where a party has paid money into Court as security for a specific undertaking, and the beneficiary later seeks some or all of that fund on the basis that the secured liability has arisen. Here, the undertaking was limited to administration costs over a defined period, and the appeal’s dismissal activated Mr Bolton’s liability for those costs ([3], [7]–[8]).
It may also be relevant where the parties dispute which costs fall within a secured period. The Court examined dated entries, descriptions of work, the timing of the stay and appeal hearing, and whether particular administrative steps were connected to ending the administration ([19]–[25]). The reasoning is fact-sensitive: for example, the Court treated 17 April and 8 May differently because of what happened on those dates.
The decision may inform disputes about whether GST is included in costs secured by an undertaking, and whether a negotiated global discount should be apportioned to a particular period. Its analysis depends on the wording and context of the email and invoice before it ([27]–[31]); it does not establish a universal method for allocating every discount.
Finally, it concerns a procedural situation where the applicant sought to rely on additional evidence after the respondent’s submissions. The Court weighed the continuing onus, the nature of the evidence, the claimed prejudice, possible duplication of proceedings, delay and the opportunity to respond ([35]–[42]). It should not be read as removing ordinary procedural fairness requirements.
The supplied judgment contains no later decisions considering or applying Bolton v WAM Active Ltd (No 3) [2026] NSWCA 171. It is therefore not possible, from this source alone, to describe how later courts have treated it.
Within the judgment, Leeming JA referred to two earlier decisions about release of security: 123 259 932 Pty Ltd v Cessnock City Council (No 4) and Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (No 2) ([38]). The judgment also recounted the procedural history in Bolton v WAM Active Ltd [2025] NSWCA 81 and Bolton v WAM Active Ltd (No 2) [2025] NSWCA 99, which concerned the stay and dismissal of the appeal respectively ([3], [7]). Those earlier decisions form the background to the security motion, rather than later treatment of the present decision.
The formal orders leave the final handling of the full $25,000 unresolved on their face. They record at least $18,500 established on the evidence in chief, give Mr Bolton seven days to respond to the additional affidavit, and permit costs submissions ([44]). The supplied text does not state what occurred after those procedural steps or whether a further order was later made.
The judgment also does not finally quantify Mr Bolton’s total liability for the administration costs. It expressly says the motion did not determine that issue ([9]). Nor does it resolve the separate question concerning Yowie Group Ltd, which it found unnecessary to consider in light of its conclusions ([43]).
The allocation of the negotiated discount involved an inference about which invoice the 4 July email referred to. The Court considered that inference “tolerably plain” but recognised that its approach might be favourable to Mr Bolton and that the difference was unlikely to affect whether the costs exceeded the security ([29]–[30]). The judgment does not provide a general accounting rule for allocating discounts across mixed administrator fees, legal fees and disbursements.
The Court’s reception of further evidence was accompanied by a specific opportunity to respond. The text does not identify the contents of any response or explain what procedural consequence would follow if Mr Bolton identified a concrete instance of prejudice. The decision therefore leaves the application of its case-management reasoning to other evidentiary settings dependent on the particular prejudice, timing and proposed safeguards.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Bolton v WAM Active Ltd (No 3) [2026] NSWCA 171
Hearing dates: On the papers
Decision date: 21 August 2026
Before: Leeming JA
Decision: 1. Note that on the evidence supplied in chief, Keybridge has established an entitlement to be paid at least $18,500 from the $25,000 paid into Court by way of security for Mr Bolton’s obligation to pay the costs of the administration.
2. Grant leave to Mr Bolton to file and serve within 7 days of today any further submissions or evidence in response to the further evidence relied on by Keybridge (being the affidavit of Ms Goodman affirmed 6 August 2026).
3. The parties may within 14 days of today file and serve submissions as to the costs of the notice of motion, not exceeding two pages, with a view to all outstanding issues being resolved on the papers.
Catchwords: PROCEDURE – Security – Money paid into court to secure undertaking to pay costs of administration extended by way of interlocutory relief pending appeal – appeal dismissed – whether applicant has established entitlement to security
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 60
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: 123 259 932 Pty Ltd v Cessnock City Council (No 4) [2021] NSWSC 1598
Bolton v WAM Active Ltd [2025] NSWCA 81
Bolton v WAM Active Ltd (No 2) [2025] NSWCA 99
Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (No 2) [2010] NSWSC 490
Category: Procedural rulings
Parties: Nicholas Francis John Bolton (appellant/respondent to motion)
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 (7th respondent/applicant on motion)
Gideon Isaac Rathner (8th respondent)
John Dean Patton (9th respondent)
Richard Michael Dukes (10th respondent)
Representation: Counsel:
S Goodman (Solicitor) (Keybridge Capital)
N Bolton (in person)
Solicitors:
Gadens (Keybridge Capital)
File Number(s): 2025/00116543
Publication restriction: Nil
LEEMING JA: By notice of motion filed on 16 June 2026, the applicant Keybridge Capital Ltd seeks an order pursuant to the UCPR r 51.50 or the inherent jurisdiction of the Court, that security in the amount of $25,000 paid into the Court on 24 April 2025 by the respondent, Mr Nicholas Francis John Bolton, be released to it.
The dispute comes about in this way. On 9 February 2025, Keybridge’s directors resolved to appoint a voluntary administrator, Mr Rathner. That occurred in circumstances when a meeting of members, called by Keybridge’s largest shareholder (WAM Active Ltd) was to occur the following morning, to consider and if thought fit pass resolutions removing board members including Mr Bolton. There was a dispute about the conduct of the meeting and the appointment of the administrator. The primary judge (Nixon J), found that it was not established that the administrator was appointed for an improper purpose, but also found that a purported adjournment of the meeting was invalid. By a second judgment delivered on 14 April 2025, the primary judge ordered the immediate ending of the administration.
That order was stayed until 17 April, so as to permit the hearing of an application for interlocutory relief pending an appeal filed by Mr Bolton. The application came before me on referral from the Registrar. On that day I granted a further stay of the order ending the administration: Bolton v WAM Active Ltd [2025] NSWCA 81, but on terms which included the following:
- Continue the existing stay of order 1 made by Nixon J on 14 April 2025, subsequently extended by the Registrar and by me, until 4pm on 8 May 2025.
- I accept the undertaking on behalf of Mr Bolton, given by his counsel, personally to pay for the costs of the administration over the period from now until 4pm on 8 May 2025 if his appeal is unsuccessful.
- I note that Keybridge Capital Ltd will continue to incur obligations to make certain payments during the period of the stay.
- I order that by way of security for the undertaking in order 2 above, and the obligations in order 3 above, for Mr Bolton to pay into Court or otherwise as agreed between the appellant and the first to fourth respondents the amount of AU$25,000 within seven days of today.
I noted at [18] that the offers to be personally liable for the costs of the administration and for that liability to be secured by way of payment of money into Court originated with Mr Bolton’s counsel.
At [37]-[38] I said:
37 Further, it is appropriate for, as the price of the stay, the applicant to be personally responsible for the costs of the administration over the period of the stay if the appeal is unsuccessful. It is also appropriate for an amount of money to be paid into Court to support both that undertaking and also the fact that the company will continue to pay salaries and fees in the meantime.
38 The amount I have settled upon to be paid into Court, doing the best I can in relation to matters which have many dimensions of uncertainty, is A$25,000, and the orders that I propose will require that amount to be paid into Court by Mr Bolton within seven days of today.
I also explained that the reason for specifying 4pm on 8 May 2025 as the end point of the period for which Mr Bolton was liable was because 8 May 2025 had been determined as the date for the hearing of an expedited appeal, and I was conscious that by the time the appeal had been heard, the Judges of Appeal constituting the Court would be in a much better position than was I to determine whether the stay should continue.
That security, required as the price of the stay sought by Mr Bolton, was provided. Mr Bolton’s appeal was heard by the Court of Appeal constituted by Bell CJ, Kirk JA and me on 8 May 2025. The Court dismissed the appeal and discharged the stay at the conclusion of the hearing, for reasons given four days later: Bolton v WAM Active Ltd (No 2) [2025] NSWCA 99.
Thus it is clear that:
Mr Bolton is and remains liable for the entirety of the costs of the administration for the period from the afternoon of 17 April 2025 until 4pm on 8 May 2025;
The $25,000 paid into Court is held by way of security for Mr Bolton’s liability. (No issue concerning the liabilities incurred by Keybridge in order 3 made on 17 April 2025, for which the $25,000 is also held as security, arises.)
The present application is for the release of the entirety of the security. It does not determine the extent of Mr Bolton’s liability.
The position is that Keybridge says that it has paid the costs of the administrators, that they substantially exceed $25,000, and it is entitled to the whole of the security. Mr Bolton raises a suite of reasons opposing that result. They may be summarised as follows:
Mr Bolton disputes that payment of the administrator’s invoices is sufficient to establish that Keybridge is entitled to the security. He says that Keybridge must “establish by admissible evidence the amount properly recoverable under the undertaking”, and that it has failed to do so.
Mr Bolton says that the undertaking applies from 2pm on 17 April 2025 until 4pm on 8 May 2026, and says that there is no evidence of whether amounts incurred at the beginning and end of the period were after 2pm or before 4pm.
Mr Bolton says that the costs claimed include GST and because Keybridge is entitled to claim input tax credits, the GST does not represent an economic cost to it.
Mr Bolton says that the costs relied on total $11,832.50.
Mr Bolton points to a $32,500 discount on the costs of the administration negotiated between Keybridge and administrators, and says that there is no evidence as to how that was allocated, and that the “evidentiary deficiency” should be resolved against Keybridge.
Mr Bolton notes, correctly, that if the entirety of the $32,500 discount negotiated between Keybridge and the administrators was treated as applying the costs between from 17 April and 8 May, there would be no costs to Keybridge of the administration for that period.
However, I do not accept that that is how the $32,500 discount should be treated. The notice of motion was supported by an affidavit of Susan Goodman affirmed 16 June 2026. That affidavit exhibited an email between Mr Rathner and Keybridge dated 4 July 2025 which included the following:
I refer to our discussion yesterday and your comments that in an application to Court for approval of administrator's fees, the Courts generally apply a discount and the approval process may take several months to resolve and hence I should accept a discount of $32,500 on the basis that KBC will approve my fees and legal costs and provide funding by Wednesday 9th July 2025.
I accept KBC’s offer that I retain the funds of $46,870 held in my trust account and funding from KBC of $526,708.87 (to be received by 9th July 2025). These amounts to be used to satisfy in full my fees and legal costs.
True it is that the discount exceeds the security, and if the entirety of the discount were treated as applying to the period between 17 April and 8 May, there might be an argument telling against Keybridge’s rights to the security. But there is no reason not to take this exchange at anything other than face value. It represents a relatively minor compromise of a global claim in exchange for speedy approval and payment of the whole.
Mr Bolton’s submissions, in effect acknowledging this, proffer by way of alternative or fallback an approach of applying the discount ratably to the entirety of the administrator’s fees, including those incurred in the period between 17 April and 8 May 2025. That approach is orthodox, and in what follows I shall apply it.
It has at all times been plain that Keybridge contends that the total costs of the administration for the period from 17 April until 8 May 2025 exceed $25,000, and by some margin. However, Ms Goodman’s affidavit in support of the motion appears to contain some errors.
In what follows I shall proceed by reference to the line item entries prepared by the administrator’s firm in connection with the relevant remuneration report to determine the costs of the administration. That accommodates Mr Bolton’s first point. No reason has been put forward to their reliability or admissibility.
So long ago as 22 May 2025, Keybridge’s former solicitors (Mills Oakley) sent an email to the solicitors then acting for Mr Bolton (Hamilton Locke) concerning the $25,000 paid into Court by way of security for the costs of the administration. The email relevantly states:
Please find attached a copy of the former administrator’s remuneration report in respect of the administration of Keybridge for the period between 9 February 2025 and 19 May 2025 (Remuneration Report), which was received by our client on 21 May 2025.
On the attached copy of the Remuneration Report, we have highlighted orange all entries which appear to relate to:
(a) work performed by the former administrator, his staff and his legal representatives, and
(b) all other expenses incurred by the former administrator,
during the Relevant Period.
The highlighted entries in Schedule D of the Remuneration Report (excluding the disbursements on page 53) total $22,102 (plus GST) or $24,312.20 (including GST). The highlighted entries in Schedule E of the Remuneration Report total $2,130 (plus GST) or $2,343 (including GST).
The amounts referred to above do not represent all costs and expenses incurred in the administration during the Relevant Period (for example, they do not include the salaries of staff of Keybridge). Our client reserves all its rights under the Orders.
In circumstances where, based on the information in the Remuneration Report (prepared by the administrator and received by our client yesterday), the costs and expenses of the administration during the Relevant Period exceeded $25,000, we are instructed to propose the attached draft short minutes of order. …
By my count, the highlighted entries in Schedule D do add to $22,102. They include amounts of $4,359 on 17 April and $3,342 on 8 May. That is to say, excluding those days, the administrator’s fees as contained in the schedule were $14,401. Mr Bolton says they were $11,832.50. His submission gives no explanation for that amount.
I think Mr Bolton’s complaint about parts of the claimed costs for 17 April 2025 is not without merit. About one fifth of the total costs claimed were incurred on 17 April 2025. The largest component by far is an amount of $3,195 representing 4.5 hours of Mr Rathner’s time on that day. Mr Rathner was a necessary party to the urgent application for a stay heard on that day, and it was appropriate that he be in court. It seems probably that all, or at least most, of the 4.5 hours represented time before 2pm, immediately preceding and during the hearing of the application. I would not allow that amount.
On the other hand, there are two other items of Mr Rather’s time, which have to do with “next steps in proceeding required by 1/5/25” and an “update”. The natural inference from the line item descriptions is that these refer to events after the stay was granted and the administration was to continue. I would allow these items (being $355 and $284).
Finally, there are three line items attributed to Mr Erica Ng. The first relates to drafting a letter “re outstanding expenses pending VA termination”, which suggests that it precedes the grant of a stay. So too does a letter “to suppliers to cancel services”. Little can be gleaned from the descriptions of the third. I would not allow these amounts (being $262.50, $210 and $52.50).
The position on 8 May 2025 is different. My recollection, confirmed by a review of the transcript, is that the hearing of the appeal occupied until around lunch, there was a short adjournment, following which the Court made orders discharging the stay made by me on 17 April 2025. The result was that the order made by Nixon J that the administration end with immediate effect thereafter took effect. The largest amount claimed for 17 April 2025 is $2,130 being 3 hours of Mr Rathner’s time. It has not been shown that it was inappropriate for Mr Rathner to devote that time to the hearing. There are also “Circular to Creditors”, “ASIC forms notification of cessation of VA”, “letter ASIC re Notices and end administration”, “finalisation documents”, “lodgment forms end administration” and so on. There is nothing to suggest that these amounts, all of which are small, are anything other than the steps necessary to end the administration. To be clear, an order that the administration must end “immediately” does not mean that the administrator must down tools at that moment, and is unable to advise ASIC that his administration is over. I would allow the entirety of the amounts claimed for 8 May, which is $3,342.
In addition, there was a sum relating to disbursements. The remuneration report highlighted two entries, but one is dated 15 April 2025 and falls outside the relevant period. The other is a disbursement of $263.19 on 6 July 2019, which is a cost of the administration.
5. The Appellant submits that Keybridge only seeks leave as the submissions filed 31 July 2026 in opposition to the Motion were an answer to Keybridge’s case in chief.
6. The Proposed Evidence is not truly responsive in reply and the true purpose of the new evidence is to both expand and seek to repair the Applicant’s case in reply where the Appellant has not had the opportunity to itself address with responsive evidence or submissions.
7. Keybridge submits that the respondent to the Motion bears an onus to have adduced evidence that, Keybridge alleges, may disturb the prima-facie entitlement of the party placing security in Court in support of an undertaking, to the return of those excess funds. With respect, this submission is misguided and seeks to improperly shift the moving party’s onus to prove their own case where the Applicant themselves accepts they carry the “heavy burden” AS[7].
8. Keybridge also submits that, in effect, where the respondent to its Motion has successfully addressed evidence of loss in chief, it ought be entitled to attempt to prove additional loss in reply. Such an approach creates serious prejudice to the Appellant and cuts across well tested procedural fairness safeguards in litigation.
9. To the extent Keybridge submit the Proposed Evidence is responsive to documents tendered by the Appellant, the Appellant does not rely upon that document tender.
Strictly speaking, I think there is force in Mr Bolton’s objection. He relied on no evidence in chief, merely making submissions which pointed out that that the more limited approach (confined to the administrator’s remuneration report) did not establish an entitlement to an amount exceeding $25,000. But what then is to be done?
Sections 56 and 60 of the Civil Procedure Act 2005 (NSW) loom large. This is not a dispute about any of the real issues in the proceedings. It is not even a dispute about costs – for there is no dispute that Mr Bolton is liable to pay the costs of the administration, whatever they be. It is a dispute about whether security for costs provided by Mr Bolton may be drawn upon by the successful litigant in partial discharge.
If I am satisfied that Mr Bolton’s liability for the administrator’s costs will inevitably exceed $25,000, then the whole of the amount lodged with the Court as security for that obligation should be released to Keybridge: see for example 123 259 932 Pty Ltd v Cessnock City Council (No 4) [2021] NSWSC 1598 at [6] and Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (No 2) [2010] NSWSC 490 at [41].
Accepting as I do that the further evidence is not, strictly speaking, evidence in reply, and that the onus remains at all times on Keybridge to establish an entitlement to have the security released to it, what is the real point being made by Mr Bolton’s submission? There are assertions of “serious prejudice” to Mr Bolton and that it “cuts across well tested procedural fairness safeguards in litigation”. Neither is elaborated.
If I acceded to Mr Bolton’s opposition to the reception of the evidence in reply, it would be open to order the release of $18,500 of the money paid into Court. It would be open to Keybridge to file a further motion with different evidence to support the balance of its claim. There could be no suggestion that a motion seeking the release of security creates an issue estoppel or res judicata or somehow prevents a further application. In particular, one thing that is not being decided is the total liability of Mr Bolton for the costs of the administration; the only question is whether Keybridge has established that that liability exceeds $25,000.
The course proposed by Mr Bolton would lead to more delay and expense. It is impossible to reconcile this with ss 56 and 60 of the Civil Procedure Act*,* unless there truly is some serious prejudice standing in the way of having regard to the legal costs.
If there is some serious prejudice or denial of natural justice to Mr Bolton, it will be capable of being identified by him. The orders I will make will permit him to do that. In the absence of any such identification, I am comfortably satisfied, albeit based on the material sought belatedly to be adduced in reply, that the costs of the administration substantially exceed $25,000, and thus Keybridge is entitled to the release of all of the money paid into Court. The orders I will make will also permit the parties to be heard as to costs.
1. Note that on the evidence supplied in chief, Keybridge has established an entitlement to be paid at least $18,500 from the $25,000 paid into Court by way of security for Mr Bolton’s obligation to pay the costs of the administration.
2. Grant leave to Mr Bolton to file and serve within 7 days of today any further submissions or evidence in response to the further evidence relied on by Keybridge (being the affidavit of Ms Goodman affirmed 6 August 2026).
3. The parties may within 14 days of today file and serve submissions as to the costs of the notice of motion, not exceeding two pages, with a view to all outstanding issues being resolved on the papers.
**********
Bolton
WAM Active Ltd (No 3)
The Court noted that Keybridge had established an entitlement to at least $18,500 on the evidence supplied in chief; granted Mr Bolton leave to file and serve responsive submissions or evidence within seven days concerning Ms Goodman’s affidavit affirmed 6 August 2026; and allowed the parties to file short submissions on the costs of the motion within 14 days. The orders did not direct release of the full security.
The result is that the remuneration report discloses $14,401 + $639 + $3,342 + $263.19 = $18,645.19 of charges for work which I am satisfied is established to have been undertaken within the period for which Mr Bolton is liable.
In addition, as noted in the email, there are six items in a separate account (Schedule E), representing time between 22 and 30 April 2025, all incurred by Mr Rather personally, which total $2,130. No separate objection is made to those amounts. However, I have checked the largest item, which is 90 minutes on 24 April 2025 described as “WAM.re costs, cof SA & GG re submissions (1.1) review draft submissions (.4)” [sic]. A verbatim identical entry (including the same spacing and punctuation infelicities) is found in Schedule D and has already been included in the above. The same appears to be the case for the entries on 28 April, 29 April and the two entries on 30 April. Given that five out of the six appear to be demonstrably double counting, I am disinclined to allow the sixth. Accordingly, I would allow none of these costs.
There is no dispute that Keybridge has paid the administrator. Thus I am satisfied that by its evidence in chief, Keybridge has established a claim for $18,645.19, exclusive of GST, subject to the global discount, based on the costs of the administrator alone. I turn now to those qualifications.
Mr Bolton asserts that the economic cost to Keybridge is the amount of fees exclusive of GST. That may or may not be so, but it is not the correct question. The question is whether the GST inclusive amount charged by the administrator to Keybridge is the “costs of the administration” for which Mr Bolton is personally liable. I think it is clear that it is. Ultimately, if the issue were to be determined by a court, Mr Rathner would be entitled to sue to recover the fees including GST. Mr Rather has made a series of taxable supplies, and is required to collect and remit GST, and the GST component is an aspect of Keybridge’s indebtedness to him.
On the other hand, it is necessary to allow for the discount to which Keybridge agreed. As noted above, I reject Mr Bolton’s submission that the discount should be applied just to the fees incurred between 17 April and 8 May. Once that submission is rejected, it is clear that the discount should be applied ratably. However, there is a dispute as to the amount on which it is to be calculated.
Mr Bolton says it is to be applied as a 10.22% discount, by reference to an amount of $318,150.91, by reference to an invoice dated 10 July 2025 in the amount of $314,216. I am not sure how he derives the percentage.
Keybridge asserts that the discount should be applied to a larger amount exceeding $500,000 for the period from 9 February to 19 May 2025. Presumably the submission is to apply the discount across the entire costs of the administration (including legal fees).
I think the appropriate course is to return to the email of 4 July 2025 when the discount was agreed. The quid pro quo for the discount of $32,500 was expressed to be payment in full by 9 July of an invoice. The invoice dated 10 July is highly likely to be that invoice, because of its date and because it states “Fees as agreed”. The ex-GST amount is $285,650.91. It is tolerably plain (from the fact that the amount ends in 91 cents) that the amount exclusive of GST has been derived from the bottom line of the invoice, which is a exact dollar amount of $314,216. I proceed on the basis that that was the agreed amount, and so the discount to be applied is 32,500 / (314,216 + 32,500) = 9.37% (approximately).
I am conscious that this approach may be unduly favourable to Mr Bolton. One way of reading the administrator's email whereby he accedes to the discount in return for prompt payment is that it represents a discount of the entirety of his fees (although that amount includes the disbursements, primarily comprising of the cost of his solicitors). But if so, the error is relatively minor, and it seems likely that nothing will turn on it, bearing in mind that all that matters is whether Keybridge has established that the costs of the administration exceed $25,000.
For those reasons, Keybridge has established an entitlement to $18,645.19 (charges within the period) plus $1,838.20 (GST on charges excluding the disbursement), which is to say $20,483.39 discounted by 9.37%. That is an amount exceeding $18,500.
More than a year ago, it was noted that the costs identified in the remuneration report did not include all of the costs. The costs of the administration include the costs incurred by the administrator in participating in litigation in the Court of Appeal to which he was joined by Mr Bolton. True it is that those costs are apt also to be recoverable as party-party costs following the dismissal of the appeal, but that does not prevent their being costs of the administration to which Mr Bolton’s undertaking secured by the money paid into Court extends.
By evidence supplied purportedly in reply by Keybridge following receipt of Mr Bolton’s submissions, Keybridge wishes to rely on other costs incurred by the administrators. It points to a tax invoice rendered by Mr Gee of counsel in the amount of $1,500 plus GST for work done between 22 April and 7 May 2025. It also points to an invoice for $30,743 plus GST, exclusive of Mr Gee’s fees, rendered by the Tisher Liner FC Law, the firm retained by Mr Rathner. The invoice includes a list of line items, none of which is quantified, from 15 April 2025 until 13 May 2025. Somewhat more than half are between 18 April and 7 May.
It is abundantly clear that if regard may be had to the material supplied purportedly in reply, then the costs of the administration will exceed $25,000. It is hard to see how there could be any dispute as to Mr Gee’s fees, and it is hard to see how there could be any dispute that the solicitors retained by the administrator properly charged substantially more than the remaining $5,000 to produce a total exceeding $25,000.
Perhaps for that reason there was strenuous opposition from Mr Bolton to Keybridge being permitted to rely on further evidence in reply. His submissions are as follows:
In light of these conclusions, it is not necessary for me to consider the evidence or submissions on the involvement of “Yowie Group Ltd”, a subsidiary of Keybridge, which was only referred to in the parties’ submissions in respect of any entitlement Mr Bolton had to the remainder (if any) of the funds in Court.
I shall make the following orders: