The definition of director outlined in section 126(1) of the Companies Act 1993 (NZ) encompasses shadow directors – people with ‘whose directions or instructions the board … is accustomed to act’.  Courts have traditionally been reluctant to impose fiduciary duties on shadow directors on the basis that they exert only an indirect influence over the company.  However, in Vivendi SA Centenary Holdings III Ltd v Richards & Ors [2013] EWHC 3006 (Ch), the English High Court held that a shadow director will ordinarily owe fiduciary duties both to the company and its creditors, at least in respect of the directions and instructions given to the directors of the company.  Justice Newey reasoned that a shadow director can reasonably be expected “to act in the company's interests rather than his own separate interests when giving such directions and instructions".

Thus a shadow director will not be immune from personal liability following insolvency merely because he is not formally registered as a director. 

See Court decision here.