JASON ALEKSANDER KARDACHI & Anor v DEEPAK MISHRA & 3 Ors

Facts

Jason Aleksander Kardachi and Hamish Alexander Christie are the private trustees in bankruptcy of Rajesh Bothra, who was adjudged bankrupt on 21 February 2021 and, according to Deepak Mishra, fled to London beforehand. In or around October 2022 the trustees asked Mr Mishra, once a close friend and business associate of Mr Bothra, to help their investigation, and they signed a Waiver and Consent Agreement dated 2 November 2022. Mr Mishra claims the agreement limited how the information he gave could be used. The trustees later reached a court-sanctioned settlement with Mr Bothra.

On 11 January 2025 the trustees sued Mr Mishra and others in HC/OC 28/2025 over 14 disposals of assets or cash made between July 2019 and February 2021, alleging they were transactions at an undervalue, unfair preferences, void dispositions or shams. On 24 April 2025 Mr Mishra began SIAC Arbitration No 185 of 2025 against the trustees, alleging breaches of good faith and of an implied limit on the use of his documents. On 30 June 2025 the court gave summary judgment for the trustees on three post-bankruptcy void dispositions, with $16,000 in costs.

Three applications followed: the trustees' HC/OA 672/2025 for a declaration that Mr Mishra lacked leave to arbitrate against them and an order restraining the arbitration; Mr Mishra's HC/SUM 1971/2025 for a declaration that no leave was needed or for retrospective leave; and the defendants' HC/SUM 1849/2025 for a case management stay of OC 28 pending the arbitration.

Issues

1. Whether leave of court was required before commencing the arbitration against the private trustees in bankruptcy
2. Whether such leave may be granted retrospectively and, if so, whether it should be granted here
3. Whether OC 28 should be stayed on case management grounds pending the arbitration

Holding

The High Court allowed the trustees' application in OA 672, declaring that Mr Mishra did not have the leave of court needed to commence the arbitration and restraining him from pursuing it against the trustees. It dismissed Mr Mishra's SUM 1971 and the defendants' stay application in SUM 1849. Costs directions were to be given separately.

Reasoning

On leave, the court applied Excalibur Group Pte Ltd v Goh Boon Kok [2012] 2 SLR 999 by analogy. A trustee in bankruptcy, like a liquidator, gathers and distributes the estate, and the leave requirement filters out frivolous claims that would waste the estate's resources. A contract signed by the trustees did not remove that protection. Not objecting to a neutral evaluation under the agreement was a choice not to enforce the requirement, not approbation and reprobation, and the textbook relied on on s 420(2) of the IRDA left the point open.

On retrospective leave, the court held it can be granted, as the parties accepted, but the applicant must show at least a prima facie arguable case. Mr Mishra had not. Recital (D) and cl 5.1(d) spoke only of the parties' belief and past conduct, not a duty of good faith. The entire agreement clause in cl 7 clearly excluded implied terms, whether in law or in fact. In any event there was no arguable breach: the agreement's recital spoke of assisting the investigation generally, the trustees confirmed on affidavit that none of his documents were used for the summary judgment, and the waiver covered only claims below a Maximum Waiver Amount fixed at $1.2 million.

On the stay, the court applied Tomolugen Holdings Ltd v Silica Investors Ltd [2016] 1 SLR 373 and found no real overlap. The void disposition claims fell outside the agreement, and whether insolvency practitioners may bring clawback claims is not arbitrable on public policy grounds, following Larsen Oil and Gas Pte Ltd v Petroprod Ltd [2011] 3 SLR 414. A stay would also risk further dissipation of the assets in issue. The court rejected the trustees' argument that res judicata barred the stay application, since no earlier final decision refusing a stay had been shown.

From the judgment