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[2025] NSWSC 524
General information, not legal advice.
Supreme Court of NSW
2025-05-21
Nixon J
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Medium Neutral Citation: In the matter of Yowie Group Ltd [2025] NSWSC 524
Hearing dates: 21 May 2025
Date of orders: 21 May 2025
Decision date: 21 May 2025
Jurisdiction: Equity - Corporations List
Before: Nixon J
Decision: The Court:
(1) Orders that the Defendant forthwith deliver to the Plaintiff, care of Mills Oakley, a complete copy of the Defendant’s register of members in electronic format correct as at the date of this order.
(2) Orders that the Defendant pay the Plaintiff’s costs of the proceeding, as agreed or assessed.
(3) Directs that the Plaintiff file any application for a gross sum costs order together with any evidence and submissions by 28 May 2025.
(4) Directs that the Defendant file any evidence and submissions in response by 4 June 2025.
Catchwords: CORPORATIONS – application for an order compelling the Defendant to provide a copy of its members’ register – where Plaintiff is majority shareholder of Defendant – where Plaintiff intends to propose resolutions for the removal of the current directors of the Defendant and for the appointment of the Plaintiff’s nominees – where Plaintiff has requested copy of members’ register of Defendant and Defendant has refused or failed to comply with this request – whether there has been compliance with the requirements for a valid request under s 173 of the Corporations Act 2001 (Cth) – whether Defendant should be ordered to provide copy of register
PRACTICE AND PROCEDURE – application for adjournment – where application for adjournment made when matter came on for hearing – where adjournment sought to allow Defendant to bring an application challenging the retainer of the Plaintiff’s solicitors – whether any evidentiary basis established for believing that the proceeding may not have been validly constituted – adjournment refused
Legislation Cited: Corporations Act 2001 (Cth) ss 173, 198G, 203D, 249F, 1303, 1324
Civil Procedure Act 2005 (NSW) s 56
Corporations Regulations 2001 (Cth) regs 2C.1.03, 2C1.04, sch 4 item 1AA
Cases Cited: 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409
Bolton v WAM Active Limited (No 2) [2025] NSWCA 99
Bolton v WAM Active Ltd [2025] NSWCA 81
Doulaveras v Daher [2009] NSWCA 58
Hongkong Xinhe International Investment Company Limited v Bullseye Mining Limited [2020] WASC 276
In the matter of Aurora Funds Management Limited [2019] NSWSC 630
In the matter of Keybridge Capital Limited [2025] NSWSC 240
In the matter of Keybridge Capital Limited (No 2) [2025] NSWSC 354
Litigation Fund WCX Pty Ltd v Homebuilding Pty Ltd [2025] NSWCA 16
Category: Principal judgment
Parties: Keybridge Capital Limited (Plaintiff)
Yowie Group Ltd (Defendant)
Representation: Counsel:
D Krochmalik (Plaintiff)
D Weinberger (Defendant)
Solicitors:
Mills Oakley (Plaintiff)
SBA Law (Defendant)
File Number(s): 2025/181404
Publication restriction: Nil
By Originating Process filed on 12 May 2025, Keybridge Capital Limited seeks an order pursuant to sections 173 and 1303 of the Corporations Act 2001 (Cth) (Act) that Yowie Group Limited forthwith deliver to Keybridge a complete copy of Yowie’s register of members.
When the matter came on for final hearing today, Yowie sought an adjournment on the basis that there was evidence that the proceeding had “not been validly constituted, having been commenced in the name of [Keybridge] without proper authority”. Yowie requested that it be granted a period of time in which to put on an application to challenge the retainer of the solicitors on the record for Keybridge, Mills Oakley, and that this motion be determined before Keybridge’s claim for final relief. The adjournment application was made in circumstances where Yowie did not identify any basis for refusing the relief sought by Keybridge in this proceeding. For the reasons set out below, I refused Yowie’s adjournment application.
I briefly outline the factual background below, before setting out my reasons for refusing the adjournment application, and then addressing the substance of Keybridge’s claim.
Each of Keybridge and Yowie is a public company which is listed on the Australian Stock Exchange (ASX).
Keybridge holds, together with its associated entities, over 179m shares or around 78.34% of the shares on issue in Yowie. (These figures are without reference to the fact that some 34.4m shares were issued by Yowie on 12 May 2025, noting that this share issue is currently the subject of an application by Keybridge to the Takeovers Panel.)
Keybridge and Yowie have previously had some common officers. In particular, prior to the events which are described below:
Mr Nicholas Bolton and Mr John Patton were:
(a) two of the four directors of Keybridge; and (b) two of the three directors of Yowie;
Mr Bolton was the chief executive officer of each of Keybridge and Yowie.
During the period when Yowie and Keybridge had these common officers, Yowie advanced moneys to Keybridge pursuant to a loan which was repayable on demand (Yowie Loan).
On 19 December 2024, WAM Active Limited, which together with its associated entities held around 43.5% of the shares in Keybridge, issued, pursuant to s 249F of the Act, a notice of general meeting of Keybridge’s members to be held on 10 February 2025 (the Section 249F Meeting).This notice stated that the business of the Section 249F Meeting was to consider and, if thought fit, to pass resolutions:
to remove Mr Bolton, Mr Patton, Mr Antony Catalano and Mr Richard Dukes as directors of Keybridge; and
to appoint Mr Geoffrey Wilson, Mr Jesse Hamilton, Mr Martyn McCathie and Mr Sulieman Ravell as directors of Keybridge.
On 6 February 2025, shortly prior to the Section 249F Meeting being held, Yowie issued a letter of demand to Keybridge, demanding repayment of the outstanding principal of the Yowie Loan in the amount of $4.483m; and, on 9 February 2025, Yowie issued a letter of default in respect of Keybridge’s failure to comply with that demand. Later that day, the then directors of Keybridge (including Mr Bolton and Mr Patton) resolved that Keybridge was insolvent or was likely to become insolvent, and resolved to appoint Mr Gideon Rathner as voluntary administrator of Keybridge.
On 10 February 2025, the Section 249F meeting was convened and Mr Patton, as Chair, immediately purported to adjourn the meeting. Various persons disputed that there was a proper basis for the adjournment and Mr Hamilton nominated himself to act as, and was elected as, Chair of the meeting. He proceeded to put the resolutions in the notice of Section 249F Meeting to a poll. The members of Keybridge resolved that Mr Bolton, Mr Patton and Mr Dukes be removed as directors of Keybridge, and that Mr Wilson, Mr Hamilton, Mr McCathie and Mr Ravell be appointed as directors of Keybridge.
On 11 February 2025, WAM commenced a proceeding in this Court seeking, amongst other things, declaratory relief regarding the outcome of the Section 249F Meeting and the identity of the directors of Keybridge, and an order that the administration of Keybridge be terminated with immediate effect.
On 21 March 2025, following a contested hearing, I made a declaration that the resolutions for the removal and appointment of directors referred to at paragraph [8] above were passed at the Section 249F Meeting (other than the resolution to remove Mr Catalano as a director of Keybridge); and a declaration that, following that meeting, the directors of Keybridge were Mr Catalano, Mr Wilson, Mr Hamilton, Mr McCathie and Mr Ravell (the Keybridge Directors): In the matter of Keybridge Capital Limited [2025] NSWSC 240 (the First Keybridge Judgment).
At the time of delivering the First Keybridge Judgment, I stood over that proceeding for a short period to allow discussions to occur between the Plaintiffs and Mr Rathner in relation to a number of outstanding issues identified in that judgment regarding the termination of the administration of Keybridge.
On 1 April 2025, the Keybridge Directors caused Keybridge to issue a notice to Yowie under s 203D(2) of the Act of Keybridge’s intention to move resolutions at the next general meeting of Yowie to remove Mr Bolton, Mr Patton and Mr Andrew Ranger as directors of Yowie. As Keybridge was in administration at this time, the Keybridge Directors sought, and were granted, leave from the Court, pursuant to s 198G(3)(b) of the Act, to cause Keybridge to issue this notice.
The Keybridge Directors subsequently ascertained that two further directors had been appointed to Yowie on 1 April 2025, being Mr Diesel Schwarze and Mr Daniel Agocs. Mr Schwarze is Mr Bolton’s brother-in-law.
On 9 April 2025, the Keybridge Directors caused Keybridge to issue a further notice to Yowie under s 203D(2) of the Act of Keybridge’s intention to move resolutions at the next general meeting of Yowie to remove Mr Schwarze and Mr Agocs as directors of Yowie. Again, because Keybridge remained in administration at this time, the Keybridge Directors sought, and were granted, leave from the Court, pursuant to s 198G(3)(b) of the Act, to cause Keybridge to issue this notice.
On 14 April 2025, following a further contested hearing, I ordered that the administration of Keybridge come to an end with immediate effect. I stayed that order so as to allow the Defendants an opportunity to approach the Court of Appeal: In the matter of Keybridge Capital Limited (No 2) [2025] NSWSC 354 (the Second Keybridge Judgment).
On 17 April 2025, Leeming JA extended the stay of the orders made on 14 April 2025 until 8 May 2025, being the date when Mr Bolton’s appeal from the First and Second Keybridge Judgments was to be heard by the Court of Appeal: Bolton v WAM Active Ltd [2025] NSWCA 81.
On 17 April 2025, Mills Oakley sent, on behalf of the Keybridge Directors, an email to the solicitors for Mr Rathner, requesting Mr Rathner’s consent under s 198G(3)(b) of the Act for the Keybridge Directors to cause Keybridge to:
make a request for the members’ register of Yowie, and
propose Keybridge’s nominees to be directors of Yowie.
Mr Rathner gave this consent on 22 April 2025.
On 24 April 2025, Keybridge issued a request to Yowie for a copy of its members’ register pursuant to s 173(3) of the Act, together with a cheque for payment of the prescribed fee of $250 (the Register R****equest). The Register Request was executed by two of the Keybridge Directors (namely, Mr Wilson and Mr Hamilton) “in accordance with sections 127(1) and 198G(3)(b) of the Corporations Act 2001 (Cth)”.
The Register Request was sent to Yowie together with a notice issued by Keybridge of its intention to nominate the five Keybridge Directors for election as directors of Yowie (Director Nomination Notice). The notice included the signed consent of each of the five Keybridge Directors to this nomination.
Yowie did not comply with the Register Request. On 29 April and 1 May 2025, the then solicitors for Yowie, Hamilton Locke, sent letters querying the authority of the Keybridge Directors to cause Keybridge to issue the Register Request. It is unnecessary to address the issues raised in that correspondence, given that no such issue was pursued at the hearing of this matter.
On 8 May 2025, Mr Bolton’s appeal from the First and Second Keybridge Judgments was dismissed and the order terminating the administration of Keybridge came into effect: Bolton v WAM Active Limited (No 2) [2025] NSWCA 99.
On 8 May 2025, Keybridge lodged an ASIC Form 484, stating that Mr Bolton, Mr Patton and Mr Dukes had ceased to be directors of Keybridge. (This form mistakenly stated that those persons had ceased to be directors on 8 May 2025, being the date on which the form was lodged. Instead, as I found and declared in the First Keybridge Judgment, Mr Bolton, Mr Patton and Mr Dukes had been removed as directors of Keybridge on 10 February 2025.)
Also on 8 May 2025, Keybridge sent a letter to Mr Bolton stating that his employment in the role of Chief Executive Officer of Keybridge was suspended with immediate effect.
On 9 May 2025, Keybridge released an announcement to the ASX that Mr Bolton’s executive roles at Keybridge had been suspended, and that Mr Patton had been removed as company secretary and replaced by Mr Hamilton.
On 9 May 2025, Mills Oakley sent a letter to Hamilton Locke, making a further request on behalf of Keybridge for a copy of the members’ register of Yowie. In a response sent on the afternoon of the same day, Hamilton Locke stated that they were seeking instructions in relation to this request.
Shortly after this response was sent by Hamilton Locke:
Yowie released an ASX announcement entitled “Yowie Group Limited announces scrip takeover bid for Keybridge Capital Limited (ASX:KBC)”; and
Mr Patton forwarded an email to one of the Keybridge Directors, Mr Hamilton, attaching a statutory demand issued by Yowie to Keybridge, demanding payment of the sum of $4,603,517.26, which was claimed to be due and payable under the Yowie Loan.
On 12 May 2025, this proceeding was commenced. The Originating Process was signed by Mr Peter Hodges of Mills Oakley as “Solicitor for the plaintiff”. The supporting affidavit of Ms Reid, a partner of Mills Oakley, which was filed on the same day included evidence, on information and belief, that:
it is the current intention of the Keybridge Directors to cause Keybridge to issue a notice of general meeting to Yowie’s members under s 249F of the Act, in order to consider resolutions for the removal of Yowie’s current directors and for the appointment of the Keybridge Directors as directors of Yowie; and
the Keybridge Directors “are concerned as to the Yowie directors’ willingness to use Yowie’s company resources for their personal benefit in attempting to entrench their own position as directors of Yowie”.
On 14 May 2025, Keybridge made a further request for the members’ register of Yowie, and again proffered payment for the prescribed fee. On the same day, this proceeding was set down for final hearing on 21 May 2025.
As at the date of the hearing, Yowie has not provided a copy of its members’ register to Keybridge in response to any of the requests referred to above.
“There is affidavit evidence before the Court to the effect that these proceedings have not been validly constituted, having been commenced in the name of [Keybridge] without proper authority. [Yowie] seeks a period of time to put on a motion and evidence challenging the retainer of Mills Oakley. [Keybridge] should be afforded an opportunity to put on evidence in reply to such a motion and submissions, and the motion should be determined before [Keybridge’s] claim for final relief.”
“It is a clear abuse of the process of the court for someone to bring litigation, supposedly in the name of a particular person, when there is no authority from that particular person to bring the litigation. A court will deal with an abuse of process of that kind once it is established that a supposed plaintiff has not given authority for the litigation to be brought. The appropriate way of bringing that sort of abuse of process to the attention of the court, and establishing the facts underlying it, if there is any doubt about them, is usually by a notice of motion seeking to strike out the statement of claim or to stay the action. However, if in the course of litigation it becomes clear to the court that its process is being abused in this way, it will act of its own motion to bring the abuse to an end. It may be that the abuse comes to the attention of the court only in the course of a final hearing, either incidentally as evidence emerges, or as a result of the counsel appearing before the judge agreeing either expressly or by their conduct to litigate the question of whether the action is authorised, and the judge not intervening to require that issue to be decided before the rest of the case proceeds. What is in substance happening then, though, is the argument of a motion challenging the retainer, not the deciding of an issue that can properly be raised by a defence in an action.”
These principles have been referred to and affirmed in a number of subsequent decisions, including in 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [60] per Barrett JA, and Litigation Fund WCX Pty Ltd v Homebuilding Pty Ltd [2025] NSWCA 16 at [26] per Ward P.
With reference to these principles, Yowie acknowledged that, “where there is a challenge to the retainer of a firm of solicitors, that challenge is properly brought by a motion or application for stay at the front-end of proceedings, and cannot be properly relied upon as a defence in trial”.
However, Yowie did not bring any such application “at the front-end of proceedings”. Instead, Yowie only moved for an adjournment of the proceeding when it was called on for hearing today.
In submitting that there was “an evidentiary basis for believing that the bringing of these proceedings [has] not been properly authorised by [Keybridge]”, Yowie referred to the following evidence in the affidavit of its solicitor, Ms Powers:
“I am told by Mr Bolton and believe that:
a. prior to him being informed that he had been suspended as Chief Executive Officer, he was the only person to have delegated authority to authorise the commencement of legal proceedings; and
b. he did not authorise the commencement of the current proceeding.”
This assertion of authority was expressed in broad terms. There was, for example, no evidence as to when or how such authority was delegated to Mr Bolton or as to the precise scope and terms of any such delegation.
In any case, the scope of any delegation to Mr Bolton is of little significance. From 9 February 2025 to 8 May 2025, Keybridge was in administration and therefore, pursuant to s 198G(1) of the Act, Mr Bolton was not able to perform or exercise any function or power of his office as Chief Executive Officer of Keybridge.
On 8 May 2025, immediately upon the administration of Keybridge coming to an end, Keybridge sent a letter to Mr Bolton, suspending Mr Bolton’s “employment in the role of Chief Executive Officer and any other executive role with immediate effect”.
The present proceeding was commenced on 12 May 2025, and therefore at a time when any executive powers of Mr Bolton, including any delegated authority in respect of the commencement of proceedings, had been suspended.
Yowie also referred to evidence given by Mr Patton in his affidavit in this proceeding, to the effect that:
on 27 February 2025, Keybridge held a general meeting at which Mr Patton “was re-elected as a director of Keybridge”;
“No steps have been taken to remove [Mr Patton] as a director of Keybridge”; and
since 27 February 2025, he has not been provided with “any board updates or notices of meeting in relation to the affairs of Keybridge”, including in relation to “engaging Mills Oakley Lawyers to act on behalf of Keybridge” or “the issuing of the current proceeding”.
Yowie submitted that this material provided an evidentiary basis for believing that the commencement of this proceeding had not been properly authorised by Keybridge. This submission appears to depend on two main propositions: first, that Mr Patton is a director of Keybridge, and secondly, that this proceeding could only have been validly commenced if authorised by all of the directors of Keybridge.
As regards the first proposition, the Court declared, in the First Keybridge Judgment, that Mr Patton was removed as a director of Keybridge at the Section 249F Meeting; and that, following this meeting, the directors of Keybridge were Mr Catalano, Mr Wilson, Mr Hamilton, Mr McCathie and Mr Ravell. This decision was upheld on appeal and, immediately following the determination of the appeal, Mr Patton was removed as a director of Keybridge on the ASIC register.
Mr Patton did not, in those earlier proceedings, bring any cross-claim seeking a declaration that, in the event that he was removed as a director on 10 February 2025, he was reappointed as a director on 27 February 2025. He did not take any such step despite the Plaintiffs in those proceedings seeking declarations as to the identity of the directors of Keybridge “on and following” 10 February 2025.
(a) makes an application to the company … in accordance with subsection (3A); and
(b) pays any fee (up to the prescribed amount) required by the company….
An application is in accordance with this subsection if:
(a) the application states each purpose for which the person is accessing the copy; and
(b) none of those purposes is a prescribed purpose; and
(c) the application is in the prescribed form.
Various prescribed purposes are set out in reg 2C.1.03 of the Corporations Regulations 2001 (Cth) (the Regulations).
Apart from stating each purpose of the request, the only other information which must be contained in the application is the name and address of the applicant: see reg 2C.1.04: In the matter of Aurora Funds Management Limited [2019] NSWSC 630 at [23] (Rees J).
A failure by a company to comply with its obligation under s 173(3) to provide a copy of its register, in response to a valid request, is an offence of strict liability: s 173(9A).
Section 1303 of the Act provides that, if any person “in contravention of this Act refuses … to supply a copy of any book, the Court may … order the copy to be supplied”. Further, section 1324(2) of the Act provides that where a person has refused or failed to do an act or thing that the person is required by the Act to do, the Court may, on application of any person whose interests are affected by such refusal or failure, “grant an injunction, on such terms as the Court thinks appropriate, requiring the first-mentioned person to do that act or thing”.
While s 173 of the Act is in mandatory terms, the relief sought under s 1303 or s 1324(2) of the Act involves an exercise of discretion. However, as Hill J observed in Hongkong Xinhe International Investment Company Limited v Bullseye Mining Limited [2020] WASC 276 at [36]:
“…in considering whether or not to exercise the discretion, it is important to have regard to the fact that the obligations in s 173 of the Act are mandatory.”
Yowie did not advance any submission that the Register Request was not validly made. Nor did Yowie advance any submission that the Court should decline to grant the relief sought by Keybridge.
The Register Request complied with the requirements of both s 173(3A) of the Act and the Regulations. It was in the prescribed form; it specified the name and address of the party making the request; and it specified the purpose for which Keybridge sought access to a copy of Yowie’s register, stating as follows:
“The request is made for the purpose of gaining a better understanding of the shareholding composition for Yowie.”
Yowie did not advance any submission to the effect that the specified purpose was a prescribed purpose; or that the specified purpose was not, in fact, the purpose of Keybridge in seeking the register; or that Keybridge had some other purpose, in addition to the specified purpose, which was not stated in the Register Request.
The Register Request further stated, “[f]or the avoidance of doubt”, that Keybridge’s purpose did not include any of the prescribed purposes identified in the Regulations (which were listed in the Register Request). Again, there was no submission by Yowie to the contrary.
The Register Request was also accompanied by a cheque for $250 in satisfaction of the fee prescribed by item 1AA of Schedule 4 to the Regulations.
As I have noted above, the Keybridge Directors caused Keybridge to issue the Register Request only after obtaining Mr Rathner’s consent to their doing so, pursuant to s 198G(3)(b) of the Act. The Register Request was signed by two of the Keybridge Directors, which was sufficient for that document to be executed on behalf of Keybridge, having regard to the terms of s 127(1) of the Act and rule 13.1(a) of Keybridge’s constitution (which likewise provides that Keybridge “may execute a document if … the document is signed by 2 directors”). For those reasons, the Register Request was validly executed by Keybridge.
Because the Register Request complied with the requirements of s 173(3A) of the Act and with the requirements of the Regulations, Yowie was obliged to comply with that request. Yowie has refused or failed to do so. It did not identify any grounds for such refusal or failure, nor advance any submission to the effect that such refusal or failure was justified.
Having regard to Yowie’s conduct to date, I consider that it is likely that, in the absence of a Court order, Yowie would continue to refuse or fail to comply with its statutory obligation to provide a copy of its members’ register to Keybridge.
In those circumstances, there is no reason for the Court to decline to exercise its discretion to make an order compelling Yowie to provide a copy of its register to Keybridge.
It also follows that Keybridge is entitled to an order for its costs of the proceeding.
Keybridge sought an order that costs be awarded on an indemnity basis, given that Yowie did not articulate any justification for failing to comply with the Register Request.
When the matter first came before the Court on 14 May 2025, Mr Byrne, who was then Counsel for Yowie, indicated that Yowie had concerns about Mills Oakley acting for Keybridge and otherwise acknowledged that there “may well be no proper basis … for [the s 173 application] to be contested”. At the hearing today, Mr Weinberger, who appeared for Yowie, pressed the adjournment application on the basis that there was an issue about Mills Oakley’s retainer, and otherwise did not advance any submissions in opposition to the relief sought by Keybridge. It follows that the majority of the time and costs at the hearing were expended on the adjournment application.
Accordingly, I make the following orders. The Court:
Orders that the Defendant forthwith deliver to the Plaintiff, care of Mills Oakley, a complete copy of the Defendant’s register of members in electronic format correct as at the date of this order.
Orders that the Defendant pay the Plaintiff’s costs of the proceeding, as agreed or assessed.
Directs that the Plaintiff file any application for a gross sum costs order together with any evidence and submissions by 28 May 2025.
Directs that the Defendant file any evidence and submissions in response by 4 June 2025.
**********
(2014) 88 NSWLR 488
Nor has Mr Patton subsequently brought any application for a declaration that he was reappointed as a director of Keybridge on 27 February 2025, or for an order that the ASIC register be amended by reinstating him as a director of Keybridge.
Any such application would be both contestable and contested, for reasons set out in correspondence between the parties which do not need to be repeated here (some of which are referred to in the First Keybridge Judgment at [363]-[367]).
In the absence of Mr Patton bringing any such claim to vindicate his alleged right to be recognised as a director of Keybridge, his assertion that he holds such a status is of little consequence. Instead, I have approached this application on the basis as found by the Court and upheld on appeal, namely, that Mr Patton ceased to be a director of Keybridge on 10 February 2025.
It follows that there is no basis for concluding, from the fact that there was no communication with Mr Patton about the commencement of this proceeding, that the Keybridge Directors were not consulted about the commencement of this proceeding.
As regards the second proposition, Yowie submitted that the effect of the evidence which is quoted in paragraph [38] above is that Mr Bolton “was the only individual authorised to commence proceedings on behalf of [Keybridge] without the imprimatur of the Board”. However, whatever the position may have been at an earlier point in time:
any such authority of Mr Bolton was, along with his other executive powers, suspended on 8 May 2025, immediately after the administration of Keybridge came to an end; and
there is no reason to conclude that the managerial arrangements, which had been put in place at a time when Mr Bolton was both a director and the CEO of Keybridge, continued after Mr Bolton was removed as a director, after Keybridge came out of administration, after the Keybridge Directors took control of the company, and after Mr Bolton’s powers as CEO were suspended.
Further, Counsel for Yowie confirmed, in oral address, that he did not advance any submission to the effect that this proceeding could only be validly commenced by a resolution of the Board. Instead, the thrust of Yowie’s submission was that there was an absence of evidence as to who authorised the commencement of the proceeding and as to how such authority was given or exercised.
It is true that Keybridge has not filed any evidence as to those matters. However, that is not surprising. There is no need for a plaintiff to advance such evidence as part of its case. Although evidence as to those matters might have been filed in response to any application by Yowie challenging Mills Oakley’s retainer, no such application has been brought to date. In those circumstances, I do not consider that the absence of evidence as to those matters provides any sound basis for inferring that the proceeding has not been, or may not have been, validly constituted.
In any case, in circumstances where:
the Register Request was sent to Yowie at the same time as the Director Nomination Notice, which included the signed consent of each of the five Keybridge Directors (see paragraphs [21]-[22] above); and
there is evidence that the Keybridge Directors intend to issue a s 249F notice calling a meeting of members of Yowie, to consider resolutions to replace the current directors of Yowie with the five Keybridge Directors, and are concerned that the current directors of Yowie are taking steps to entrench their position (see paragraph [30] above);
it is open to infer that each of the Keybridge Directors is aware that the Register Request was made, and that Yowie’s directors have not complied with this request; and agrees with the present application being brought to compel Yowie to do so, so that Keybridge may issue the proposed s 249F notice.
For those reasons, I reject Yowie’s submission that there is “an evidentiary basis for believing that the bringing of these proceedings [has] not been properly authorised by [Keybridge]”. Given that this submission formed the basis of Yowie’s adjournment application, it also follows that the application must fail.
In any event, even if such an evidentiary basis has been established, there are a number of additional reasons why I would otherwise have concluded that the Court should refuse the adjournment application.
First, there has been no explanation for the delay in bringing any application challenging the retainer of Mills Oakley. Insofar as an element in any such application is a contention to the effect that Mr Patton was re-appointed as a director of Keybridge on 27 February 2025, there has been no explanation as to why Mr Patton has not sought to obtain relief in respect of his alleged right to be recognised as a director at any time in the past three months, particularly in circumstances where there was ongoing litigation regarding the identity of the directors of Keybridge. As I have noted above, Yowie read evidence from Mr Patton in support of this application, and his affidavit was silent as to the reasons for any such delay.
Secondly, there would be prejudice to Keybridge in deferring the determination of this proceeding while a challenge is mounted to Mills Oakley’s retainer which may include a dispute as to whether or not Mr Patton is a director of Keybridge. This would delay Keybridge’s obtaining access to Yowie’s members’ register (in circumstances where no proper basis for refusing access has been identified), which would in turn delay Keybridge’s ability to issue notices to members of Yowie calling a meeting for the removal and replacement of its directors.
Thirdly, even if it were established at such a hearing that Mr Patton was a director of Keybridge, such an outcome would not affect the ability of Keybridge to commence or continue this proceeding. Mr Patton would be, in such circumstances, only one of the six directors of Keybridge. Further, since Mr Patton is a director of Yowie and its chairman, he would be conflicted on the issue as to whether Keybridge should commence or continue a proceeding against Yowie. That is particularly so in circumstances where Keybridge intends to call a meeting of Yowie’s members in order to consider a resolution for the removal of Mr Patton as a director of Yowie and the proceeding is brought in order for Keybridge to obtain a copy of Yowie’s members’ register.
Fourthly, Yowie will not suffer any substantial prejudice by reason of the Court proceeding to deal with Keybridge’s application for relief today. That is particularly the case given that the only relief sought by Keybridge in this proceeding is that Yowie comply with its existing obligations under the Act, and Yowie does not contend that there is any basis on which it is entitled to refuse to comply with those statutory obligations and, in particular, to refuse to provide a copy of its members’ register to Keybridge in accordance with s 173(3) of the Act. The Register Request was made a month ago, and Keybridge subsequently made two further requests for Yowie’s register before and after the commencement of this proceeding. There is no reason for further delay in dealing with this issue.
Finally, insofar as Mr Patton’s position is relevant, the determination of Keybridge’s s 173 application will not prejudice his ability to bring any subsequent application regarding his alleged re-election as a director of Keybridge.
Having regard to those matters, even if Yowie had established that there was an evidentiary basis for its proposed challenge to Mills Oakley’s retainer, I would not have been satisfied that an adjournment of the hearing of Keybridge’s application for relief was consistent with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in this proceeding: Civil Procedure Act 2005 (NSW), s 56.
In seeking indemnity costs, Counsel for Keybridge acknowledged that he did not advance any submission that there was any relevant delinquency on the part of Yowie in pursuing its adjournment application such as to justify an award of indemnity costs in respect of that application. Nonetheless, he pressed the application for costs to be awarded on an indemnity basis, and submitted that the Court might carve out, from such an award, the costs of the adjournment application. I consider that any such form of order would be undesirable and may cause unnecessary expense, as it would require the costs of a proceeding which was heard in less than an hour, to be assessed on two alternative bases. For those reasons, I have determined that costs should be awarded on the ordinary basis.
Keybridge indicated that it intended to make an application for its costs to be paid on a gross sum basis. I have made orders below providing for a timetable for any such application, which will be determined on the papers.