Read the full judgment text of on BabelCite. was delivered on 17 November 1994 before Bokhary, J.A. and Mayo, J..
Civil procedure – pleadings – whether de facto and shadow directorships are mutually exclusive – whether they may be pleaded in the alternative or together – Companies Ordinance s.275 – fraudulent trading – fraudulent purpose – further and better particulars – discovery – Companies Ordinance (1975 and 1984), Cap.32 s.275 – Re Hydrodan (Corby) Ltd [1994] BCC 161 – Re Tasbian Ltd (No.3) [1993] BCLC 297 – Loan arrangement between Danish financial institution and Hong Kong borrowers guaranteed by Hong Kong parent company – parent company went into liquidation leaving guarantees unhonoured – plaintiff left out of pocket by approximately HK$542 million – Whether de facto and shadow directorships are inherently mutually exclusive – Held: no, they are not inherently mutually exclusive, and may be pleaded in the alternative or together provided the rules of pleading are not offended – Whether fraudulent purposes plea under s.275(1) of Companies Ordinance is viable and adequately particularised – Held: yes; plea reinstated – Whether further and better particulars of Defence should be ordered – Held: appeals allowed in limited part only; specific requests for net sale prices and previously overlooked requests to be answered, remainder of refusal upheld as falling within judge's discretion – Outcome: Wheelock Marden's appeal on de facto directorship dismissed; ADS's cross-appeals against striking out paragraph 30 allowed; ADS's appeals out of time on further and better particulars allowed in part; discovery to be the subject of agreed consent order.
Legal issues: Whether de facto and shadow directorships can be pleaded in the alternative or together · Whether paragraph 30 (fraudulent purposes plea) should be reinstated · Whether further and better particulars of the Defence should be ordered
Outcome: Wheelock Marden's appeal (No.104) on de facto directorship dismissed; ADS's cross-appeals (Nos 24 & 25) against striking out paragraph 30 allowed; ADS's appeals out of time (Nos 36 & 37) allowed in part; parties to submit draft consent order on discovery.