RB INVESTMENTS PTE LTD v JASON ALEKSANDER KARDACHI & 2 Ors

Facts

Mr Rajesh Bothra was made bankrupt on 25 February 2021 in HC/B 2640/2020, and Mr Jason Aleksander Kardachi and Mr Patrick Bance were appointed his private trustees. They were investigating fund transfers made to RB Investments Pte Ltd (RBI) from Mr Bothra and associated entities between 2017 and March 2020. RBI's sole director is his wife, Mrs Rashmi Bothra; its company secretary, Ms Wong Shaw Mooi, had also been Mr Bothra's personal assistant. In July 2020 RBI engaged the law firm Oon & Bazul LLP for possible legacy planning and structuring.

The trustees applied in HC/SUM 794/2023 to examine Ms Wong under s 335(1) of the Insolvency, Restructuring and Dissolution Act 2018. Mr Kardachi's supporting affidavit exhibited two email chains. Each began with emails, with attachments, sent to the law firm, and ended with a top email in which Mr Bothra forwarded them without comment to Mr Deepak Mishra, described as his friend. One top email was sent from an address linked to RBI's engagement with the firm, the other from an address associated with Kobian Pte Ltd.

In Originating Application No 473 of 2023 RBI sought declarations that the documents were privileged and inadmissible, their expunging from the affidavit, and orders restraining their further use or disclosure. Ms Wong did not object.

Issues

1. Whether legal advice privilege belonging to RBI protected the top emails forwarding the earlier communications to Mr Mishra
2. Whether the attachments were themselves privileged
3. Whether, absent privilege, Mr Mishra received the emails under an equitable obligation of confidence owed to RBI that should restrain their use

Holding

The court dismissed RBI's application in its entirety. Parties were directed to try to agree costs within 14 days, failing which each was to file short costs submissions for the court to fix costs.

Reasoning

An email that forwards earlier emails is a fresh communication and must be judged on its own terms. The top emails neither sought, contained nor passed on legal advice. Sections 128 and 131 of the Evidence Act 1893 did not apply. Whether common law privilege covered them turned on why they were sent. RBI bore the burden of showing that Mr Bothra and Mr Mishra acted as its authorised representatives, and it failed to do so. Mr Bothra's own evidence was that he shared his family's financial matters with Mr Mishra to get his views, and the judge accepted Mr Mishra's evidence that he saw the emails as coming from Mr Bothra personally and was never involved in RBI's affairs. The attachments did not appear to have been prepared for the purpose of obtaining legal advice, and six of them had never been sent to the lawyers at all. The judge saw force in the argument that the original emails to the firm were for client onboarding, but did not decide it.

On confidence, following Wee Shuo Woon v HT SRL [2017] 2 SLR 94 the question was one of admissibility and whether equity should intervene. The judge rejected as a bare assertion Mrs Bothra's claim that she had involved Mr Mishra for the purpose of RBI obtaining legal advice. Nothing sent to him signalled that RBI's privilege was engaged. Any duty of confidence was owed to Mr Bothra, not RBI, and the trustees now stood in his shoes. The judge expressly did not rely on prematurity or unclean hands, which were not fully argued.

From the judgment