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Update on the recent case law
Appendix 2
De facto directors – referred to in thesis Chapter 9 at page 191
Re Kaytech International Plc [1999] 2 BCLC 351 (CA) at 424- “ the issue was as
whether the individual in question has assumed the status and functions of a company
director as to make himself responsible…as if he were a de jure director ” .
Secretary of State for Trade and Industry v Tjolle [1998] 1 BCLC 333 (Ch) at 343-344-
“the issue was the individual part of the corporate governing structure”
See also Commissioners for Her Majesty’s Revenue & Customs Ltd v Holland [2010] 1
WLR 2793 (UKSC).
For New Zealand cases; see Clark v Libra Developments Ltd [2007] 2 NZLR 709 (SC)
where the Majority of the Court of Appeal applied Re Hydrodam (Corby) [1994] 2
BCLC (Ch) 180. For Australian cases; see Emanuel Management Pty Ltd (in liq) v
Foster’s Brewing Group Ltd[2003] 178 FLR 1 at [257]- the key feature of of de facto
directorship is that an individual is “properly regarded as part of the governing structure
of the company‟ See also Commissioner of Taxation v Austin (1999) 28 ACSR 565.
Shadow directors- referred to in thesis Chapter 9 at page 191
See Lord v Sinai Securities Ltd [2004] EWCH 1764 (Ch); Ultraframe (UK) Ltd v
Fielding [2005] EWH 1638 (Ch); Buzzle Operations Pty (in liq) v Apple Computer
Australia Pty Ltd [2010] NSWSC 233-the cases describe how a company can be a
shadow director. There is also no requirement that all directors of a multi-member board
must follow a shadow director‟s directions or instructions. The act of a governing
majority is sufficient.
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