28 Jan 2021
The appeals are dismissed because the plaintiff failed to establish a prima facie case that the defendants (Ng and Yap) were wrongdoers in effective control of Convoy Global (and the relevant subsidiaries); absence of that threshold finding alone defeats the derivative claims and justifies upholding the strike out and dismissal of the amended statements of claim.
28 Jan 2021
The appeals are dismissed because the plaintiff failed to establish a prima facie case that the alleged wrongdoers (Ng and Yap) were in effective control of the companies such as to prevent the company from suing; absent that threshold, the derivative actions could be struck out. The court also found no prima facie evidence of fraud on the minority or deliberate dishonest breach by the defendants sufficient to justify a derivative action.
23 Jan 2020
The appeals were dismissed because (1) the 2078 counterclaim, grounded on assumed/ad hoc fiduciary duties, disclosed a reasonable cause of action and was not plainly and obviously unsustainable; (2) the 2998-3000 summary judgment applications were improper where genuine disputes of fact existed about oral Withdrawal/Wyse Agreements and potential estoppel/Duomatic defences, so leave to defend was appropriate; and (3) the derivative claims in HCA 133 and 136 established a prima facie case within the fraud on the minority exception and were not strikingly unfit to proceed. Accordingly none of th…
23 Jan 2020
The Court dismissed all three sets of appeals: (1) the 2078 strike out appeal was dismissed because the counterclaim alleging assumption of fiduciary duties disclosed a reasonable cause of action and was not plainly and obviously unsustainable; (2) the appeals against dismissal of the 2998-3000 O.14 summonses were dismissed because the respondent's defences (Withdrawal/Wyse Agreements and related estoppel/Duomatic arguments) raised triable issues and summary judgment/conditional leave to defend was inappropriate; and (3) the 133/136 derivative strike out appeals were dismissed because the res…
23 Jan 2020
The Court dismissed all three sets of appeals: the 2078 strike out appeal failed because the counterclaim based on assumed fiduciary duties disclosed a reasonable cause of action and was not plainly frivolous or an abuse; the O.14 appeals (2998‑3000) failed because factual disputes about oral family agreements and estoppel/Duomatic principles required trial and the defences raised arguable points; the 133/136 derivative strike outs failed because the applicant did not show absence of a prima facie 'fraud on the minority' and other strike out grounds were insufficient — leave to defend retaine…
23 Jan 2020
The court dismissed all three sets of appeals because the counterclaim alleging assumption of fiduciary duties disclosed a reasonable cause of action, the defences to the O.14 summonses raised disputed factual questions (including alleged oral agreements and estoppel/Duomatic arguments) for trial so summary judgment was inappropriate, and the derivative claims disclosed a prima facie case of fraud on the minority; therefore none of the interlocutory orders under appeal were plainly and obviously wrong.
23 Jan 2020
All three sets of appeals dismissed: the 2078 counterclaim disclosed a reasonable cause of action based on assumed/ad hoc fiduciary duties and was not plainly frivolous or an abuse; the 2998-3000 defences raised bona fide factual disputes (Withdrawal/Wyse Agreements and Consensus) defeating Order 14 summary judgment and precluding conditional leave or strike out; the 133/136 derivative claims established a prima facie fraud‑on‑the‑minority exception and were not struck out for alternative remedy or clean hands; leave to defend granted and costs awarded to the Respondent subject to taxation.
23 Jan 2020
The appeals were dismissed because (1) the 2078 counterclaim pleaded a reasonable cause of action based on assumed fiduciary duties supported by pleaded facts and materials and was not plainly unsustainable; (2) the defences in HCA 2998-3000 raised triable factual issues (Withdrawal/Wyse Agreements, Duomatic and estoppel) precluding summary judgment and conditional leave to defend was refused; and (3) the derivative claims in HCA 133 & 136 established a prima facie case within the 'fraud on the minority' exception so strike out was inappropriate.
17 Dec 2019
The plaintiff failed to establish a prima facie case that Ng and Yap were wrongdoers in control of Convoy Global or that there was fraud (including personal benefit) such that the Foss v Harbottle rule was displaced; accordingly both derivative actions were correctly struck out and the plaintiff lacked standing to continue them.
17 Dec 2019
The plaintiff failed to establish a prima facie case that Ng and Yap were wrongdoers in control of Convoy Global or that there was fraud on the minority/personal benefit; the reconstituted board was not shown to lack independence; therefore the derivative claims fail the locus standi threshold and both actions must be struck out.