Vincent Ng J:

The 1st and 6th defendants made two similar appeals to me vide encls. 71 and 72 respectively against the learned senior assistant registrar's decision on 9 February 2001 dismissing their application under O. 18 r. 19(1)(a) to (d)and O. 15 r. 6(2)(a) of the Rules of the High Court 1980('RHC') for the following orders:

(a) to strike out all the paragraphs in the plaintiff's amended statement of claim dated 30 June 1999 which refer or relate to the 1st and 6th defendants; and

(b) that the 1st and 6th defendants cease to be defendants in the suit.

Against The 1st Defendant

The plaintiff sued its former director, the 1st defendant, for breach of fiduciary duty owed by the 1st defendant to the plaintiff as a director of the plaintiff.

Against The 6th Defendant

The plaintiff sued the 6th defendant for, inter alia, conspiracy and breach of trust as a constructive trustee.

In short, against the 1st and 6th defendants the plaintiff alleged that by the fraudulent and dishonest actions of the 1st and 6th defendants, in breach of trust and fiduciary duties to the plaintiff, the 1st and 6th defendants caused the plaintiff's subsidiary company, Omega Securities Sdn Bhd ('Omega Securities') to give financial assistance to one John Soh Chee Wen ('John Soh') to purchase the plaintiff's shares ('Omega shares') which in turn caused Omega Securities to run foul of s. 67 of the Companies Act 1965.

To strike out the plaintiff's claim the 1st defendant raised the following grounds:

(a) the 1st defendant was never a shareholder of the plaintiff;

(b) the 1st defendant was never a director of the plaintiff or its subsidiary company, Omega Securities; and

(c) the plaintiff's documents exhibited in its affidavit in reply are inadmissible hearsay.

And, the 6th defendant raised the following grounds:

(a) the 6th defendant merely conducted the share transactions in its capacity as a stockbroker in the ordinary course of business; and

(b) the plaintiff's documents exhibited in its affidavit in reply are inadmissible hearsay.

The 1st defendant's ground (c) is common with the 6th defendant's ground (b).

On Grounds (a) And (b) Of The 1st Defendant's Appeal

The lynchpin of the 1st defendant's contention on grounds (a) and (b) is that since the 1st defendant, Tony Tiah, was never a shareholder of the plaintiff and never a director of the plaintiff and Omega Securities, the plaintiff's claim against him should be struck off. It is undisputed that the 1st defendant's name does not appear in the company statutory forms of the plaintiff company and Omega Securities as a director or shareholder.

Upon study of the pleadings and affidavits I am satisfied that the court cannot strike out the claim against the 1st defendant for being clearly without merits. Notably, the statement of claim contains averments that the 1st defendant is a shadow director of the plaintiff and Omega Securities who had represented and held out that he had control of over 90% of the plaintiff's shareholding. Indeed, there is a pending criminal case against the 1st defendant, Tony Tiah, based upon the same transaction in this suit.

The material part of the plaintiff's averments in this regard is as follows:

The plaintiff is a public company. The plaintiff's main business is its 100% wholly owned subsidiary, Omega Securities Sdn Bhd ('Omega Securites'). Omega Securities was a licensed stockbroker and its main business is dealing with shares. The 1st defendant ('Tony Tiah') is an individual and a stockbroker. At all material times, Tony Tiah represented and held out that he had control over 90% of the plaintiff's shares ('Omega shares'). He was also a director of the plaintiff and Omega Securities within the meaning of the term "director" as defined in section 4 of the Companies Act 1965('the Act'), that is, a shadow director. The other directors of these 2 companies, that is, the 2nd till the 5th defendants were accustomed to act in accordance with the directions and instructi