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[2025] NSWCA 167
procedural. The Notice of Motion to adjourn the appeal hearing was dismissed with costs ([22]).
2 cited instruments linked from this judgment.
The Court refused to postpone an urgent appeal. The lawyers who had prepared the appeal returned their briefs after funds for their fees were not deposited in trust. The Court considered that the appeal materials were already prepared, that no adequate explanation for the funding failure had been given, and that the dispute about a public company’s board should be resolved quickly. It considered that any response needed to Keybridge’s Notice of Contention could be provided in writing if the issue arose. The Court dismissed the motion with costs. It did not decide the appeal itself.
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2,142 words · generated 06/10/2026
This is a short procedural ruling about whether to postpone an urgent appeal. It is not the judgment deciding the merits of that appeal. On 24 July 2025, Bell CJ, with Payne JA and Stern JA agreeing, dismissed the appellants’ Notice of Motion to adjourn the appeal hearing and ordered costs ([19]–[22]).
The appeal arose from a judgment delivered by Black J on 20 June 2025 in In the matter of Yowie Group Ltd [2025] NSWSC 648. Yowie filed an appeal on 25 June, along with a motion seeking to prevent a company meeting scheduled for 27 June. Leeming JA refused that urgent injunction application on 26 June in Yowie Group Ltd v Keybridge Capital Ltd [2025] NSWCA 142 ([1]). The present judgment refers to those earlier proceedings as procedural background; it does not reassess their merits.
The appeal was initially set down for 10 July. On 9 July, the Court was informed that Yowie no longer wished to pursue the appeal, but that its former director, Nicholas Bolton, did. Bolton was joined as a second appellant on the understanding that he would take carriage of the appeal, while Yowie would remain a party but take no active role ([2]–[4]). A new hearing date of 24 July was fixed, and the Court made detailed case-management directions.
By 16 July, senior counsel and junior counsel had been briefed. They prepared written submissions and an Amended Notice of Appeal. The submissions were filed on 17 July, and Keybridge filed its submissions on 21 July ([4]). But on that same day both counsel returned their briefs. The emails quoted in the judgment said the stipulated funds had not been placed in trust ([5], [7]). A motion to vacate the hearing was sent to the Court on 23 July ([5]).
At the hearing of that motion on 24 July, Mr Judd appeared for Bolton and indicated that he was also briefed to argue the appeal if the adjournment request failed ([10]). He raised concerns including the recently filed Notice of Contention and the possibility of further amendments to the appeal grounds. The Court noted there was no application before it to amend the Amended Notice of Appeal ([11]). Keybridge did not press a standing objection after it was raised ([12]). The Court concluded that the difficulties did not justify postponing the appeal.
The Court’s reasoning turned on the circumstances of this particular application. The judgment does not set out a statutory test or formulate a comprehensive legal test for adjournment applications. It explains why, on the procedural history before it, postponement was not warranted.
First, the appeal had already received substantial preparation. Experienced senior and junior counsel had settled the amended appeal notice and prepared detailed written submissions ([4], [17]). Those materials meant the case was not starting afresh on the eve of the hearing. The Court also noted that counsel had apparently accommodated the solicitors by allowing extensions for the funds to be put in trust ([6]–[7], [17]).
Second, the stated reason for counsel returning their briefs was the failure to deposit funds in trust. Bell CJ recorded that no explanation had been given to the Court as to why the funds had not been provided, despite the apparent accommodation ([17]). The Court described Mr Bolton as apparently responsible for the withdrawal of counsel and said it was not sympathetic to his application in those circumstances ([18]). That observation was the Court’s assessment of the evidence and submissions on this motion, not a general rule that funding disputes can never justify an adjournment.
Third, the Court considered the public interest in expedition. The dispute concerned the composition of the board of a public company. Although trading in Yowie shares was suspended, the Court said disputes about the composition of a public-company board should be resolved as expeditiously as possible in the public interest ([16]). Payne JA agreed, stating that granting the adjournment would be antithetical to the speedy determination of important commercial matters ([20]).
Fourth, the Court considered whether the Notice of Contention created a problem that could not be handled on the scheduled hearing date. Keybridge had filed it on 21 July, and Bolton had not responded by the time of the adjournment application ([11]). Payne JA raised the possibility of allowing a written response later if the Notice of Contention became necessary to decide. Bell CJ considered that a practical way to deal with the issue and noted that the need for a response depended on whether Bolton’s appeal grounds succeeded ([14], [18]). The Court therefore treated the issue as manageable without vacating the hearing.
The combined reasoning was that the appeal was prepared, the immediate cause of counsel’s withdrawal had not been adequately explained, the board dispute had a public-interest dimension favouring expedition, and the Notice of Contention could potentially be dealt with by a narrower procedural accommodation. On that basis, the application was dismissed.
The judgment does not describe a change in the law before and after this decision. No legislation is cited, and the reasons do not purport to create a new general rule about when adjournments must be granted or refused. Its contribution is a fact-specific illustration of appellate case management in an urgent commercial proceeding.
Before the ruling, the appeal had been subject to repeated and detailed directions. It had first been listed urgently for 10 July, then relisted for 24 July after Bolton took carriage of the appeal. Counsel’s written submissions and amended appeal notice were filed before the hearing, while Keybridge’s submissions and Notice of Contention were also filed ([2]–[4], [11]). The motion to adjourn was made the day before the 24 July hearing ([5]).
After the ruling, the appeal was not adjourned by this motion, and the Court ordered costs against the moving party on the motion ([22]). The ruling does not state the outcome of the appeal itself. Nor does it determine whether Bolton’s appeal grounds or Keybridge’s Notice of Contention would succeed.
For practitioners, the judgment illustrates that an adjournment application may be evaluated in light of preparation already completed, the explanation for a last-minute change in representation, the interests affected by delay, and whether a discrete procedural difficulty can be addressed by a narrower measure. Those considerations are drawn from this judgment’s reasoning, particularly [14]–[20]. They should not be mistaken for an exhaustive test or a prediction of how another court would decide an application with different facts.
The judgment refers to Yowie Group Ltd v Keybridge Capital Ltd [2025] NSWCA 142 as the earlier decision refusing interim injunctive relief, and to the Supreme Court judgment under appeal ([1]). It does not analyse those decisions as authorities on adjournments. It also contains no discussion of later judicial treatment of the present ruling.
At [16], Bell CJ stated that “disputes over the composition of the board of a public company should be resolved as expeditiously as possible in the public interest.” In plain English, the Court considered prompt resolution important because the dispute concerned who would govern a public company. The judgment also records that trading in Yowie shares was suspended, but did not treat that fact as removing the interest in resolving the board dispute quickly.
At [17], Bell CJ observed that “no explanation has been given to the Court” for why funds were not put in trust to secure counsel’s attendance, despite apparent accommodation. This passage explains why the Court was not persuaded that the sudden absence of counsel was a sufficient basis for postponement. The point was the lack of an explanation on the material before the Court, not an express finding that no explanation could ever justify an adjournment.
At [18], Bell CJ said the Court was “not sympathetic” to the application, particularly given the public interest in quick resolution. The Chief Justice also identified a way to accommodate the Notice of Contention issue: if it became necessary, Mr Judd could respond in writing. The passage shows the Court considering whether the difficulty could be separated from the hearing date rather than treating it as requiring an adjournment.
At [20], Payne JA said granting the application would be “antithetical to the speedy determination of important commercial matters”. In ordinary language, Payne JA considered that postponing the hearing would work against the need to resolve the commercial dispute promptly. Stern JA agreed with Bell CJ and with Payne JA’s additional observation ([21]).
Finally, [22] records the formal result: “The Notice of Motion to adjourn is dismissed with costs.” That order disposed of the adjournment motion only. It did not dispose of the appeal.
The ruling is most directly relevant to an application to adjourn an urgent appeal where counsel have withdrawn shortly before the hearing, appeal materials have already been prepared, and the stated reason for withdrawal concerns the failure to place funds in trust. The Court’s assessment relied on the particular combination of these matters, including the absence of an explanation for the funding failure ([5]–[7], [17]–[18]).
It is also relevant where a party relies on a late-filed Notice of Contention as a reason to postpone a hearing. Here, the Court considered whether a written response could address any issue that proved necessary to decide, rather than vacating the hearing altogether ([11], [14], [18]). The judgment does not say that written responses will always be sufficient. It records the proposed accommodation in this case.
The public-company context mattered. The Court expressly connected expedition with a dispute over board composition and the public interest ([16], [20]). The case may therefore be a useful comparison where delay affects the resolution of an important commercial dispute. But the reasons do not establish that every commercial dispute, or every dispute involving a company board, must be heard without adjournment.
The judgment is less directly informative where the reason for counsel’s withdrawal is materially different, where the applicant has provided an explanation for a last-minute problem, where the hearing materials are not substantially prepared, or where a procedural accommodation cannot fairly address the issue. The Court did not decide those circumstances. Any comparison should account for the evidence, timing, procedural history, prejudice and public-interest factors in the later matter, rather than treating the result here as automatic.
The judgment itself provides no information about later judicial treatment of this decision. It was delivered on 24 July 2025, and the supplied text identifies no subsequent cases that applied, followed, distinguished, or otherwise considered it. It would therefore be unsupported to describe a later line of authority or claim that the decision has been adopted as a general adjournment rule.
The cases identified in the judgment are earlier proceedings in the same dispute. Yowie Group Ltd v Keybridge Capital Ltd [2025] NSWCA 142 concerned the refusal of an injunction to stop the company meeting ([1]). In the matter of Yowie Group Ltd [2025] NSWSC 648 was the judgment from which the appeal was brought ([1]). Neither is described in this ruling as later treatment of the adjournment reasoning.
The safest account of precedential significance is correspondingly narrow: this is a procedural ruling recording why the Court declined an adjournment in the circumstances before it. Any assessment of how later courts have treated it would require sources beyond the judgment text supplied here.
The ruling leaves several matters open because it was confined to the motion to adjourn. Most importantly, it does not determine the appeal grounds, the merits of the underlying Supreme Court judgment, or the ultimate position concerning Yowie’s board ([1], [19], [22]). The Notice of Contention was also not decided. The Court’s comments address how it might be handled if it became necessary, and explain that necessity would depend on the success or otherwise of Bolton’s appeal grounds ([18]).
The reasons do not decide what circumstances would amount to a sufficient explanation for a late withdrawal of counsel, or when the loss of representation would warrant an adjournment despite prior preparation. The judgment gives the Court’s assessment of the facts presented, including the unprovided trust funds and the absence of an explanation, but does not set out a general threshold ([17]–[19]).
Nor does the ruling specify the scope or procedure for any written response to the Notice of Contention. It records that an opportunity to respond in writing could be provided if necessary, but does not establish a general procedure applicable in other appeals ([14], [18]). Finally, it does not state the outcome of the appeal or whether the contemplated written response was ultimately required.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
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
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.
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.
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.
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.
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.”
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.
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.
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.”
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.
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.
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.
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.
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.
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.
**********
Yowie Group Ltd and Bolton
Keybridge Capital Ltd
The Notice of Motion to adjourn the appeal hearing was dismissed with costs ([22]).
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.
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.
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.
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.
In those circumstances, in my view, the application for an adjournment should be refused.
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.
STERN JA: I also agree with the Chief Justice, and with the additional observations of Payne JA.
BELL CJ: The order of the Court then is that the Notice of Motion to adjourn is dismissed with costs.