Bolton v WAM Active Ltd (No 2)

1. [1]

   THE COURT: On 8 May 2025, shortly after the conclusion of oral submissions, this Court made orders dismissing this appeal with costs and discharging the stay which had been ordered pending the appeal. We indicated that reasons for judgment would be delivered promptly thereafter. These are our reasons.

Background

1. [2]

   This appeal concerns a meeting of members of Keybridge Capital Ltd, held some three months ago, at around 4.30pm on 10 February 2025. The meeting had been called pursuant to s 249F of the Corporations Act 2001 (Cth) by the first respondent WAM Active Ltd, which is Keybridge’s largest shareholder. The notice stated that the business of the meeting was to consider and, if thought fit, to pass resolutions:

2. [3]

   The four men nominated by WAM Active Ltd are the second, third, fourth and sixth respondents to this appeal. Mr Hamilton was WAM Active’s Joint Company Secretary. It is accepted that he was WAM Active’s authorised representative at the meeting.

3. [4]

   The notice stated that it was a “hybrid” meeting, which could be attended in person or by telephone, but added that no voting facilities were available by telephone. Members were advised they could vote by proxy. Proxy forms were to be supplied to BoardRoom Pty Ltd, which WAM Active had appointed as Meeting Registry, no later than 5pm Thursday 6 February 2025.

4. [5]

   Keybridge and WAM Active are both ASX-listed public companies. WAM Active and associated entities hold approximately 43.5% of the total shares issued by Keybridge. Mr Catalano and his associated entities hold slightly more than 10% of the shares issued by Keybridge.

5. [6]

   On the evening of 9 February, Keybridge’s directors resolved to appoint a voluntary administrator, Mr Rathner. The primary judge, Nixon J, found that it was not established that Mr Rathner was appointed for an improper purpose. Nonetheless, his Honour also found that at that time, the time for members to submit proxy votes on the resolutions had expired, and that proxies in respect of more than 50% of Keybridge’s total shares issued had been received in favour of the resolutions to remove Messrs Bolton, Patton and Dukes.

6. [7]

   The Chair of the meeting, Mr Patton, purported to adjourn the meeting shortly after its commencement on 10 February. Messrs Catalano and Hamilton objected to his doing so. The primary judge found that the purported adjournment was invalid and of no effect. There is no challenge to that finding. Thereafter, in circumstances which will shortly be described in more detail, Mr Hamilton purported to chair the meeting and the resolutions were carried, save that in relation to the removal of Mr Catalano, which failed. Of course, once the resolutions were put forward for a vote, the outcome was predetermined by the proxies which had already been cast by WAM Active and Mr Catalano and entities associated with them. Mr Bolton made it clear while Mr Hamilton was purporting to chair the balance of the meeting that he was of the view that Mr Hamilton had no power to take that course and the resolutions purportedly passed were invalid.

7. [8]

   WAM Active commenced proceedings the following day, 11 February 2025, seeking declaratory relief that the meeting was valid, that Mr Bolton had been removed and that its nominees had been appointed directors. There were no pleadings; instead the litigation was conducted on the basis of the originating process, a document entitled “Plaintiffs’ issues and contentions” and the affidavits.

8. [9]

   There was a final hearing in the Corporations List on 5, 6 and 7 March 2025, following which the primary judge delivered a judgment of some 376 paragraphs on 21 March: In the matter of Keybridge Capital Ltd [2025] NSWSC 240. The Court declared that:

9. [10]

   The unchallenged findings mentioned above that his Honour was not satisfied that an administrator was appointed for an improper purpose, but that the purported adjournment was invalid and of no effect, were made at [344] and [165] of those reasons. Concerning the latter, his Honour said at [177] and [190]:

10. [11]

    There was a further hearing on 8 April 2025, leading to a second judgment, once again promptly delivered, on 14 April 2025: In the matter of Keybridge Capital Ltd (No 2) [2025] NSWSC 354 and an order that Keybridge’s administration was to end with immediate effect. It is unnecessary to summarise the issues resolved by the second judgment.

11. [12]

    An appeal was filed on 16 April 2025. On 17 April 2025, that appeal was fixed for final hearing on 8 May 2025, and directions were made for the exchange of submissions and preparation of appeal books. The primary judge had granted a limited stay of the order that the administration end, and that stay was extended, on terms including the provision of security and an undertaking from Mr Bolton, until 4pm on 8 May 2025: Bolton v WAM Active Ltd [2025] NSWCA 81.

12. [13]

    On the evening of 6 May 2025, substantially in accordance with the timetable, Mr Bolton’s submissions in reply were filed. They stated that grounds 2, 3 and 4 of the appeal were not pressed. The only ground which is pressed is ground 1. That ground is confined to the first judgment, and is as follows:

13. [14]

    It will be seen that ground 1 is confined to whether or not Mr Hamilton was validly elected as chairperson of the meeting.

Evidence and findings of fact by the primary judge

1. [15]

   The parties’ submissions on the appeal focussed attention much more precisely than had occurred at trial upon the events at the meeting of 10 February 2025, reflecting the fact – as Mr Sirtes SC, who had not appeared at trial, candidly and appropriately acknowledged – that the contentions now advanced on behalf of Mr Bolton had not been squarely advanced at trial.

2. [16]

   There were three relatively contemporaneous documents which bore upon what had occurred, which were the subject of the parties’ submissions, and which warrant extensive reproduction.

3. [17]

   The first was the official company minutes, signed by Mr Hamilton, which were prepared based on notes taken by a solicitor present who was acting for WAM Active. The solicitor’s original notes were not in evidence; however her evidence was that Mr Hamilton’s affidavit was prepared independently of her notes.

4. [18]

   The minutes signed by Mr Hamilton identified that Mr Catalano attended by telephone, and that Messrs Bolton and Patton attended in person (Mr Dukes does not appear to have been in attendance). Aside from the directors who were the subject of the resolutions appointing them as directors, the administrator, lawyers and registry officials, the only others physically in attendance were two shareholders, Mr and Mrs Schwartz, and Mr Patton’s son. The minutes record a statement by Mr Patton, following which there were hostile exchanges between Messrs Patton, Catalano and Hamilton. In response to Mr Patton’s statement that “director nominees need to consider whether they want to withdraw their consent to act”, Mr Ravell stated “You have three of those directors here before you today. None of us have withdrawn their consent to act”. Mr Patton said “Consistent with my powers as chairman under rule 7.6 of the Constitution it is my decision that the meeting now be adjourned”. Mr Hamilton protested that decision. Mr Catalano is then recorded as saying:

5. [19]

   The entirety of sections 4 and 5 of the minutes is as follows:

6. [20]

   Thereafter the minutes record that all resolutions passed save for the removal of Mr Catalano. They also record that while Mr Hamilton was proposing some of the resolutions, Mr Bolton said “Jesse you are making a fool of yourself, the meeting has been adjourned” and “You don’t have power under the constitution to chair a meeting” and “I am the deputy Chairman, there are other directors here, people who can chair any meeting. You don’t have the power to do it. This meeting has been adjourned”.

7. [21]

   The second was a filenote made by Mr Hamilton shortly after the meeting. His note recorded the following:

8. [22]

   The third was Mr Patton’s minutes of the meeting. However, these were confined to the events prior to the purported adjournment, and for that reason were not as significant for the purpose of the submissions advanced on appeal as the other two documents.

9. [23]

   The minutes signed by Mr Patton record:

10. [24]

    Those minutes also record a “Chairman’s Statement” which occupies more than one third of the entire document which contained 10 reasons why the adjournment was appropriate. Despite the heading, the minutes do not suggest that those matters were in fact stated to the meeting, and Mr Patton confirmed as much in cross-examination.

11. [25]

    Mr Patton’s minute concludes:

12. [26]

    The parties’ submissions were directed to precisely when Mr Catalano was present (by telephone) at the meeting, and precisely what occurred and what was said after Mr Patton announced that the meeting was adjourned and together with Mr Bolton left the front of the room, but stayed at the back near the door, as Mr Hamilton purported to conduct the balance of the meeting.

13. [27]

    Rule 7.5 of Keybridge’s Constitution provides:

14. [28]

    Clause 1.1(f) provides:

15. [29]

    Clause 1.1(a) defines “Representative” as follows:

16. [30]

    Clause 7.9(e), (f) and (g) provide:

17. [31]

    The primary judge had the benefit of the documents summarised above, and also testimonial evidence from Ms Reid, Mr Rathner, Mr Bolton and Mr Patton. His Honour made the following factual findings concerning the meeting, at [122]-[139]:

18. [32]

    The primary judge also made the following findings at [237]-[242]:

19. [33]

    On that basis, the primary judge made the declarations from which this appeal has been brought. It will be recalled that ground 1 of Mr Bolton’s appeal challenges the conclusion in [242].

Mr Bolton’s submissions on appeal

1. [34]

   Mr Bolton submitted that the primary judge erred in finding that Mr Hamilton was validly elected as chair of the meeting. The argument involved the following three strands.

2. [35]

   First, Mr Bolton complained that the primary judge failed “to account for the fact that, as the interim chair who presided over the purported election of a replacement chair, he could not have been appointed replacement chair of the Impugned Meeting because, at the time of his purported election to that role, Hamilton could not be a nominee for (or be elected to) the role of replacement chair”. He relied on National Australia Bank Ltd v Market Holdings Pty Ltd [2001] NSWSC 253; 161 FLR 1 at [100] and Sandalwood Properties Ltd (Subject to a Deed of Company Arrangement) v Huntley Management Ltd [2018] FCA 1502; 131 ACSR 215 at [99]-[100]. This submission contended that what the primary judge found at [138] amounted to the proposition that “his Honour accepted that Hamilton had acted as interim chair and was then elected as chair”. In response to the proposition that the submission should not be entertained because WAM Active could have sought relief under s 1322 had it been advanced at trial, Mr Bolton maintained that the breach which occurred was substantive and a breach of a common law rule, which could not be cured under either s 1322(2) or (4) of the Corporations Act.

3. [36]

   Secondly, Mr Bolton contended that the primary judge erred in finding that none of Messrs Bolton, Patton and Catalano was willing to act as replacement chair. Mr Bolton contended that both he and Mr Catalano were willing to act as chair. It was said that Mr Catalano’s query why he had not been approached to act as chair carried with it his willingness so to act. He contended that Mr Catalano, who filed a submitting appearance, should be regarded as being in the same camp as WAM Active, and that his Honour should have drawn the inference that his evidence would not assist.

4. [37]

   Thirdly, Mr Bolton contended that, in light of rule 7.5(c), the members were only empowered to elect as a chair “a member who is present and willing to act”. He said that Mr Hamilton was not a member. Mr Hamilton was authorised by WAM Active, but Mr Bolton said:

5. [38]

   In his written submissions in reply, Mr Bolton maintained that r 7.9(e) should be construed ejusdem generis, so as not to extend to chairing the meeting.

6. [39]

   It is not necessary separately to summarise the respondents’ submissions, which have informed what follows.

Consideration

1. [40]

   There is a measure of overlap between the first and second strands of Mr Bolton’s appeal. However, we shall attempt to deal with each in turn.

2. [41]

   The starting point is that there is no dispute that Mr Patton invalidly purported to adjourn the meeting. It follows in point of law as well as in fact that the meeting thereafter continued. The entirety of Mr Bolton’s argument is that the resolutions purportedly passed were not valid in law, because Mr Hamilton was not validly appointed chair of that meeting.

3. [42]

   The premise of the first strand of Mr Bolton’s argument is that Mr Hamilton was appointed as the interim chair of the meeting, and that the primary judge so found. According to Mr Bolton, it follows that, as interim chair, Mr Hamilton was incapable of nominating himself as chair. But neither aspect of the premise is made out.

4. [43]

   First, the primary judge made no such finding. It is convenient to reproduce [138], on which Mr Bolton relies, and [241]:

5. [44]

   There was no challenge to the factual findings. Nothing in the primary judge’s reasons supports the conclusion that Mr Hamilton was appointed an interim chair. That is entirely unsurprising, since it was at no stage suggested by any party that that occurred prior to this appeal being brought.

6. [45]

   However, Mr Bolton contended that whether or not the primary judge found that Mr Hamilton was appointed as interim chair, that was what in point of law must have occurred, in order for the meeting to appoint a chair. This was made clear in oral submissions:

7. [46]

   We do not agree. The reason was captured in the following exchange:

8. [47]

   We do not accept Mr Bolton’s characterisation of what occurred. As the respondents submit, this is not a case where a person was put forward on an interim basis for the purpose of determining who should be the chair. If there is to be a contested election of the chair, then there may well be a need for an interim chair who can act impartially to manage that process, as was held in National Australia Bank Ltd v Market Holdings Pty Ltd at [100]. That is why such a person cannot themselves participate in the election. But the reasoning in National Australia Bank Ltd v Market Holdings Pty Ltd is premised on the proposition that there was a contest as to who would chair the meeting. That is well removed from anything that happened in the present case.

9. [48]

   On the findings made by the primary judge, which accord with the totality of the evidence summarised above, Mr Patton was unwilling to act as chair, and no person aside from Mr Hamilton expressed any willingness to replace him. Mr Hamilton’s appointment was then approved by the members. There was no thought given to, and no occasion for, the appointment of an interim chair. It is to be borne steadily in mind that the members were bound by Keybridge’s Constitution, and if neither the chairperson nor the deputy chairperson of directors is willing to act as chairperson of a general meeting, then “the members present must elect as chairperson” in accordance with cl 7.5(c). Thus, following the correct assessment that Mr Patton’s purported adjournment was invalid, there was an obligation upon all members to appoint a chair. It is also necessary to bear in mind how few members actually attended the meeting in person. Aside from Mr Hamilton as WAM Active’s representative, and Messrs Bolton, Patton and Mr and Mrs Schwartz who were on the verge of leaving the meeting, the only others in the room were lawyers and the son of Mr Patton along with employees of the registry. Mr Catalano, and an unknown number of other shareholders, had attended by telephone, but their connection had been cut off by Mr Patton immediately upon him purporting to adjourn the meeting.

10. [49]

    In oral submissions, there was some retreat from the proposition that Mr Hamilton was an interim chair. It was said:

11. [50]

    That submission conflates two separate points, namely (a) whether there has been compliance with cl 7.5 of the Constitution, and in particular the series of steps which must be satisfied before it becomes possible pursuant to cl 7.5(c)(2) for a member to chair a meeting, and (b) the proposition that where there is a contest as to who will chair the meeting, then there may be a need for an interim chair to manage the process by which that contest is resolved. We shall return below to the question whether Mr Bolton should be permitted to seek to establish, and if so whether he has established, that Mr Bolton was “present and willing to act” for the purposes of cl 7.5(c)(1) of the Constitution. But nothing in the evidence concerning Mr Catalano suggests that there was some contest between Mr Hamilton and anyone else that would engage the principles governing the need for an impartial interim chair.

12. [51]

    That disposes of the first strand of the argument. However, as noted above, Mr Bolton candidly acknowledged that this submission had not been squarely advanced at trial. It is a matter which, had it been advanced, is apt to have affected the evidence and cross-examination and submissions at trial. Had it been advanced, we have no doubt that the primary judge – whose careful reasons for judgment dealt with all aspects of the submissions which were advanced – would have made findings. That is not a ground that ought to be permitted to be raised for the first time on appeal.

13. [52]

    In Metwally v University of Wollongong [1985] HCA 28; 59 ALJR 481, the joint judgment said that “[e]xcept in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so”. In Water Board v Moustakas (1988) 180 CLR 491 at 497; [1988] HCA 12 it was said that if “all the facts had been established beyond controversy or where the point is one of construction or of law, then a Court of Appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied”. In Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 at [51], the High Court said that “[I]t would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial” (citations omitted).

14. [53]

    It is also not necessary to address the respondents’ further submission that any irregularity could have been cured by an order under s 1322, and part of the prejudice that is suffered from the point being raised on appeal for the first time is that they have been deprived of that opportunity. However, we should say something in relation to Mr Bolton’s rejoinder, which was to the effect that s 1322 was not available, because the defect which occurred was both substantive and a matter of common law. We do not accept this, for the following reasons.

    1. (1)

       Section 1322(2) addresses procedural irregularities. Mr Bolton’s submission against the availability of s 1322(2) was that Mr Hamilton as interim chair appointing himself as chair was not a procedural irregularity. If contrary to what we have found above he was an interim chair, on the basis that there might be a contest, it rapidly emerged that there was no contest (not least for the good reason that the outcome of the resolutions to be put to the meeting was pre-ordained by the proxies which had been cast). We favour the view that Mr Hamilton’s subsequent appointment as chair, on the hypothesis that he had been interim chair for a few moments beforehand, is to be regarded in those circumstances as procedural for the purposes of s 1322(2). It is clear beyond argument that there was no substantial injustice having regard to the proxies lodged by a majority of shareholders.

    2. (2)

       Even if we are wrong about that, such that s 1322(2) is unavailable, we do not accept that by reason of what was said in National Australia Bank Ltd v Market Holdings Pty Ltd concerning a principle of “common law” what occurred falls outside the scope of a “contravention of … a provision of the constitution of a corporation” within the meaning of s 1322(4). Mr Bolton’s submission to the contrary involves a false dichotomy. The question posed by s 1322(4) is not answered by saying that the irregularity may be described as contrary to a “common law” rule; instead the only relevant question is whether there is or is not a contravention of the constitution. That question is resolved as a matter of substance, rather than form. The substance of Mr Bolton’s argument is that the procedure for meetings governed by cl 7.5 of Keybridge’s Constitution was not complied with.

15. [54]

    Turning to the second strand of Mr Bolton’s submissions, once again, this was not a point advanced at trial, and it is a point which was apt to have affected the evidence and cross-examination and submissions. This is in part because there was no evidence of any such willingness in Mr Bolton’s affidavits, and it is pellucidly plain that Mr Bolton supported Mr Patton’s purported adjournment, repeatedly saying that “we have closed the meeting” and Mr Hamilton “didn’t have power under the Constitution to chair a meeting”.

16. [55]

    Indeed, this submission is antithetical to the stance taken by Mr Bolton at the meeting, and the case Mr Bolton ran at trial. It should not be permitted to be raised for the first time on appeal.

17. [56]

    Even so, we address Mr Bolton’s submissions on their merits. Mr Bolton’s argument turns on whether either or both of Messrs Bolton and Catalano were “present and willing to act” to chair the meeting, and whether Mr Hamilton was required to, and did, make any inquiries of those men to that effect.

18. [57]

    Turning first to Mr Bolton, it is true that, after some five resolutions had been put to the meeting now chaired by Mr Hamilton, Mr Bolton is recorded in the minutes as stating that he was a deputy chairman and entitled to chair the meeting. But that statement does not support the conclusion that he put himself forward as chair at the relevant time – namely, when it was necessary to fill the vacuum created by Mr Patton’s invalid adjournment. Moreover, the proposition that Mr Bolton was willing to assume the chair in order to put the resolutions to the meeting does not withstand scrutiny. The outcome of the resolutions had been determined by WAM Active’s and Mr Catalano’s proxies. Mr Bolton evidently did not wish to be removed as a director. Yet once the meeting proceeded, that was the inevitable outcome of the meeting. There is absolutely no basis to infer that Mr Bolton would have been willing to act as chair.

19. [58]

    Perhaps it was because of the considerations in the previous paragraph that Mr Bolton focussed attention on the position of Mr Catalano. It was put that when Mr Patton terminated Mr Catalano’s telephone connection, at the same time as he purported to adjourn the meeting, the result was that Mr Catalano was wrongly excluded from the meeting. It is not necessary to express a view on that point, but let it be assumed, favourably to Mr Bolton, that that was so. It was then said that Mr Catalano was excluded at precisely the time that Mr Hamilton made himself chair, with the consequence of prejudicing the interests of Mr Catalano, and his entitlement as a director to chair the meeting. It was also said that when Mr Hamilton said that if the outgoing directors were unwilling to chair he would do so, that excluded Mr Catalano, and confirmed that Mr Hamilton had no intention or permitting a director to chair the meeting.

20. [59]

    We cannot accept these submissions.

21. [60]

    First, no doubt because this was not in issue before the primary judge, there is some factual uncertainty about precisely when Mr Catalano was excluded and when he was reconnected. It is clear from the reference in the minutes signed by Mr Hamilton that after Mr Patton disconnected him, his telephone connection was resumed and continued for another 6 minutes and 52 seconds, from which it is clear that he was disconnected only briefly.

22. [61]

    Evidently Mr Catalano was participating in the meeting in the immediate aftermath of Mr Patton first advising that he was going to adjourn the meeting – this is when he is recorded as criticising the appointment of the administrator. Evidently Mr Catalano was present when Mr Hamilton said, before the purported adjournment, that he objected to the adjournment and “You are not adjourning for a proper purpose. If you try to adjourn the meeting, we will elect a chair and be holding it with or without you”.

23. [62]

    It is not clear whether Mr Catalano was on the line when, after the purported adjournment a few seconds later, Mr Hamilton addressed the room to say “If Keybridge’s outgoing directors are unwilling or unable to continue the Meeting, the shareholders will elect one of their number to act as Chairman”. But nothing turns on this.

24. [63]

    Mr Catalano had no reason to seek to act as chair. He was physically absent from the meeting, which would make it very difficult (to say the least) for him to perform that role. Further, the outcome of the motions was, to his knowledge, assured. He had evidently fallen out on this issue with Mr Bolton and Mr Patton, and he was aware that WAM Active (the 43% shareholder) had voted its proxy forms in precisely the same way that he (the 10% shareholder) had voted.

25. [64]

    It was said, by reference to Mr Hamilton’s statement “if Keybridge’s outgoing directors are unwilling or unable to continue the Meeting” that Mr Catalano was excluded:

26. [65]

    But a more natural construction of Mr Hamilton’s words in the circumstances of the meeting is that he was fully conscious that Mr Catalano’s interests were aligned with those of WAM Active, and that Mr Catalano could not readily chair the meeting when he was present only by telephone, and that he had no reason to object to Mr Hamilton’s chairing of the meeting.

27. [66]

    Mr Bolton contended for there being a positive obligation upon Mr Hamilton to canvas with the directors whether they were willing to act. But it needs to be borne in mind that Mr Bolton was maintaining that the meeting had been adjourned, and doing so in the certain knowledge that he would be removed as director if the resolutions – which were the only business to be conducted, and for which purpose the meeting had been convened – were put to the meeting. It is with respect quite unreal to think that after Mr Patton and Mr Bolton had left the table at the front of the meeting, and were at the doorway watching and listening to what was occurring, Mr Hamilton needed explicitly to ask whether they were willing to chair the meeting.

28. [67]

    In any event, a natural reading of Mr Hamilton’s words “If Keybridge’s outgoing directors are unwilling or unable to continue the meeting …” is that they provided an opportunity to Messrs Patton and Bolton to correct the obvious conclusion to be drawn from their conduct and state that they were both willing and able to continue the meeting and put forward the resolutions.

29. [68]

    It is also quite unreal for Mr Hamilton to need to think that after Mr Catalano had forcefully disagreed with Mr Patton, and had voted his 10% in favour of removing Messrs Bolton, Patton and Dukes, and knew that Mr Hamilton proposed to chair a meeting if Mr Patton wrongfully adjourned it as occurred, that Mr Hamilton needed to reconnect Mr Catalano and ask him whether he was willing to chair the meeting. It is noteworthy that when Mr Catalone was reconnected he raised no query about whether Mr Hamilton could or should be chairing the meeting, and did not suggest that he should be undertaking the task.

30. [69]

    Finally, even if the foregoing is wrong, then it is clear that any failure to raise those matters with Messrs Bolton, Patton or Catalano was a “defect, irregularity or deficiency in notice” within the meaning of s 1322(1)(b) and therefore procedural. There was no injustice, let alone substantial injustice, and so s 1322(2) would apply. As Mr Sirtes SC accepted, “all roads were inevitably leading to Rome” in terms of the outcome on the resolutions to be put to the meeting.

31. [70]

    Mr Bolton’s third point is bad in law. What follows responds to Mr Bolton’s written submissions, which were not developed orally.

32. [71]

    Mr Hamilton was WAM Active’s authorised representative. Rule 1.1(f) read with the definition of “Representative” means that “member” includes such a representative. Rule 7.9(e) gives a representative “the same rights to speak, demand a poll, join in demanding a poll or act generally at the meeting as the member would have had if the member was present”. Against this conclusion, Mr Bolton sought in his submissions in reply to read r 7.9(e) ejusdem generis so that it did not apply to chairing a meeting of members. There is no basis for displacing those definitions, or confining r 7.9(e) more narrowly than its ordinary language. In particular, there is no reason to reach the result that a corporate shareholder cannot by its authorised representative exercise all of the rights it enjoys as a member that a natural person shareholder enjoys. Further, Mr Bolton’s submission produces the unpalatable result that a corporate member’s authorised representative was incapable of being elected chair. The foregoing is wholly consistent with the conferral of power by s 250D of the Corporations Act upon an individual appointed by a body corporate as its representative “to exercise all or any of the powers the body corporate may exercise … at meetings of a company’s members”, and it is with respect difficult to reconcile Mr Bolton’s submission with the breadth of s 250D.

Conclusion and orders

1. [72]

   Mr Bolton supplied evidence that the appeal involved property or civil rights amounting to or of the value of $100,000 or more, in light of which the respondents did not dispute that his appeal lay as of right. That may be accepted. However, for the reasons given above, the appeal was dismissed. The order for costs made on 8 May 2025 followed the event.