Wilson triumphs over Bolton's Keybridge Capital in the Supreme Court

Wilson triumphs over Bolton's Keybridge Capital in the Supreme Court

A long-running stoush between Nicholas Bolton-helmed Keybridge Capital (ASX: KBC) and WAM Active (ASX: WAA) has concluded after the Supreme Court found in favour of the latter.

The proceedings related to a long-running tug-of-war between the two, culminating in a takeover bid from Wilson Asset Management's fund for KBC lodged on the ASX in early July 2020.

The case revolved around a decision made by the Takeovers Panel regarding 16 million shares "improperly transferred" to WAM as part of a previous bungled takeover attempt of Keybridge.

Impacted shareholders of those 16 million shares were granted a perpetual right by the Takeovers Panel to obtain back their shares from WAM Active, a firm founded by veteran investment manager Geoff Wilson.

Keybridge launched proceedings in the Supreme Court of NSW to rectify the alleged improper transfer of Keybridge shares, with a goal to have those shares vested with the Australian Securities and Investment Commission (ASIC).

However the Supreme Court of NSW has found in favour of WAM Active and ordered Keybridge pay WAA's and ASIC's legal costs.

The Court found that WAM Active's bid dated 3 January 2020 never closed subject to defeating conditions.

As such, WAA did not breach the Corporations Act by processing acceptances into the bid and the transfer of the processed shares to WAM Active was valid and effective.

The finding of the Supreme Court shuts down Keybridge's attempts to either have the shares vested with ASIC or have KBC director and media mogul Antony Catalano acquire the shares from previous shareholders at a premium.

Catalano stepped up in July 2020 with an offer to the holders of the 16 million shares to acquire the securities for 7.1 cents each, doubling the premium WAM was offering to simply see the shares returned to them.

The Supreme Court's decision also overrides a previous Takeovers Panel decision which concluded WAM Active's bid closed on 3 March 2020 subject to defeating conditions.

"The findings of the Court vindicate the actions of WAM Active and make clear that the Takeovers Panel's previous conclusions and KBC's accusations concerning the status of conditions to WAM Active's 3 January 2020 bid, were based on an incorrect interpretation of the law," said WAA.

"WAM Active is disappointed and concerned with KBC's Directors use of shareholder funds on continuous litigation."

According to Keybridge, the company is considering its right of appeal.

"The NSW Supreme Court decision did not accord with the decision of the two Takeovers Panels and, in Keybridge's view, creates material uncertainty in the Australian takeovers framework, such that a bidder can defer its decision whether to rely on a triggered prescribed occurrences condition until the 3rd day after the close of a bid," Keybridge said.

"Keybridge considers that the legislation envisages that shareholders ought to have certainty seven days prior to the close of a bid as to whether the bidder is bound to the contracts or not, for all conditions that are triggered at that time, so that the only uncertainty is whether a prescribed occurrence is not known at that time."

Despite Bolton's loss in this bout with Geoff Wilson, he did manage to get a point on the board in late 2020.

They say third time's the charm, and that certainly rang true for Bolton following his latest attempt to get a board seat at chocolatier Yowie (ASX: YOW).

Bolton was successful in being appointed as a non-executive director of the Company on 30 November 2020, scoring 52.68 per cent of the votes in his favour.

John Patton, who runs the Aurora Dividend Income Trust, a company that has been investigated by ASIC over an alleged "shadow" directorship for Bolton in the past, also secured 52.68 per cent of votes in his favour.

However Yowie has still not announced Patton's successful bid for directorship of the company, with the decision still pending judicial advice.

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