RB Investments v Kardachi: Legal Advice Privilege & Bankruptcy Investigation

RB Investments Pte Ltd sought to expunge documents from an affidavit filed in bankruptcy examination proceedings brought by Jason Aleksander Kardachi and Patrick Bance, the private trustees of Mr. Rajesh Bothra's bankrupt estate, and to prohibit their further use or disclosure. The documents in question were email chains containing communications between RBI, its representatives, and its lawyers, Oon & Bazul LLP. The High Court of Singapore, presided over by Justice Philip Jeyaretnam, dismissed RBI's application, finding that the communications were not protected by legal advice privilege and that no duty of confidence was breached when the documents were forwarded to a third party.

1. Case Overview

1.1 Court

General Division of the High Court of the Republic of Singapore

1.2 Outcome

RBI's application dismissed.

1.3 Case Type

Insolvency

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

RB Investments seeks to expunge documents from bankruptcy proceedings, claiming legal privilege. The court dismisses the application, finding no privilege.

1.7 Decision Date

28 September 2023

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Jason Aleksander Kardachi	Respondent	Individual	Successful in opposing application	Won	Tan Yen Jee of Allen & Gledhill LLP Han Tiong of Allen & Gledhill LLP Ee Jia Min of Allen & Gledhill LLP Yeo Alexander Lawrence of Allen & Gledhill LLP
Patrick Bance	Respondent	Individual	Successful in opposing application	Won	Tan Yen Jee of Allen & Gledhill LLP Han Tiong of Allen & Gledhill LLP Ee Jia Min of Allen & Gledhill LLP Yeo Alexander Lawrence of Allen & Gledhill LLP
RB Investments Pte Ltd	Claimant	Corporation	Application Dismissed	Lost	Vikram Nair of Rajah & Tann Singapore LLP Foo Xian Fong of Rajah & Tann Singapore LLP Ashwin Kumar Menon of Rajah & Tann Singapore LLP Liew Min Yi of Rajah & Tann Singapore LLP Glenna of Rajah & Tann Singapore LLP
Wong Shaw Mooi	Respondent	Individual	Neutral	Neutral	Chua Sui Tong of Rev Law LLC Abigail Tang En-Ping of Rev Law LLC

3. Judges

Judge Name	Title	Delivered Judgment
Philip Jeyaretnam	Judge of the High Court	Yes

4. Counsels

Counsel Name	Organization
Tan Yen Jee	Allen & Gledhill LLP
Han Tiong	Allen & Gledhill LLP
Ee Jia Min	Allen & Gledhill LLP
Yeo Alexander Lawrence	Allen & Gledhill LLP
Vikram Nair	Rajah & Tann Singapore LLP
Foo Xian Fong	Rajah & Tann Singapore LLP
Ashwin Kumar Menon	Rajah & Tann Singapore LLP
Liew Min Yi	Rajah & Tann Singapore LLP
Glenna	Rajah & Tann Singapore LLP
Chua Sui Tong	Rev Law LLC
Abigail Tang En-Ping	Rev Law LLC

4. Facts

RBI sought to expunge documents from bankruptcy proceedings.
The documents were email chains between RBI, its lawyers, and third parties.
The Private Trustees are investigating Mr. Bothra's affairs leading up to his bankruptcy.
Mr. Bothra forwarded emails containing attachments to Mr. Mishra.
Mr. Mishra was a friend of Mr. Bothra, not an authorized representative of RBI.
The emails were forwarded from an email address associated with Kobian, not RBI in the second email chain.
The Private Trustees sought to examine Ms. Wong regarding the documents.

5. Formal Citations

RB Investments Pte Ltd v Kardachi, Jason Aleksander and others, Originating Application No 473 of 2023, [2023] SGHC 274

6. Timeline

Date	Event
2015-01-01	Mr Bothra became a director of RBI.
2016-01-01	Mr Bothra ceased to be a director of RBI.
2017-12-13	Ms Wong appointed as company secretary for RB Family Trust.
2020-02-27	Mr Bothra transferred ownership of RB Family Trust to Mrs Bothra.
2020-02-28	Mrs Bothra transferred ownership of RB Family Trust to RB Investment Trust.
2020-03-01	Mrs Bothra transferred her shares in RBI to RB Investment Trust.
2020-07-01	RBI engaged Mr Ray Shankar from Oon & Bazul LLP for legacy planning and structuring.
2021-02-25	Bankruptcy order made against Mr Bothra.
2023-03-21	Private Trustees applied for an order for the examination of Ms Wong.
2023-07-04	Judgment reserved.
2023-09-29	Judgment issued.

7. Legal Issues

Legal Advice Privilege
- Outcome: The court held that legal advice privilege did not apply to the forwarded emails because the forwarding was not authorized and the recipient was not acting as a representative of RBI.
- Category: Substantive
- Sub-Issues:
  - Waiver of privilege
  - Dominant purpose of communication
  - Authorized representative
Duty of Confidence
- Outcome: The court held that no duty of confidence was breached because the recipient of the forwarded emails did not receive them under circumstances that would give rise to an obligation of confidentiality to RBI.
- Category: Substantive
- Sub-Issues:
  - Breach of confidence
  - Circumstances importing an obligation of confidentiality

8. Remedies Sought

Declaration that documents are legally privileged
Expungement of documents from affidavit
Restraining order against disclosure of documents
Stay of examination proceedings

9. Cause of Actions

Application to expunge documents
Application to restrain disclosure

10. Practice Areas

Commercial Litigation
Insolvency Litigation
Bankruptcy
Civil Litigation

11. Industries

Finance
Legal Services

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Mah Kiat Seng v Attorney-General and others	High Court	Yes	[2022] 3 SLR 890	Singapore	Cited for the principle that common law principles not inconsistent with the Evidence Act may apply or inform its interpretation.
Boey Chun Hian (by his guardian and next friend, Boey Ghim Huat) v Singapore Sports Council (Neo Meng Yong, third party)	Singapore High Court	Yes	[2013] SGHCR 15	Singapore	Cited for the principle that the party asserting privilege bears the burden to prove the facts from which privilege is said to arise.
Gotha City v Sotheby’s and another	English Court of Appeal	Yes	[1998] 1 WLR 114	England and Wales	Cited for the principle that further circulation of legal advice within a group of persons having an interest to receive it does not amount to a waiver of privilege.
Wee Shuo Woon v HT SRL	Court of Appeal	Yes	[2017] 2 SLR 94	Singapore	Cited for the principle that where privileged documents come into the hands of third parties, the issue is not one of privilege but of admissibility of evidence, and the court considers the circumstances in which the emails were obtained in order to answer the question of whether equity should restrain their use and admission into evidence owing to a breach of confidence.
HT SRL v Wee Shuo Woon	High Court	Yes	[2016] 2 SLR 442	Singapore	Cited for the principle that obligations of confidentiality are not dependent on the existence of privilege and that privilege is founded on the law of evidence while the law of confidence exists outside the law of evidence.
Vestwin Trading Pte Ltd and another v Obegi Melissa and others	High Court	Yes	[2006] SGHC 107	Singapore	Cited for the principle that where a third party has come into possession of confidential information in circumstances where the confidential nature of such information is clear to him, he owes an obligation of confidentiality.
X Pte Ltd v CDE	High Court	Yes	[1992] 2 SLR 996	Singapore	Cited for the principle that where a third party has come into possession of confidential information in circumstances where the confidential nature of such information is clear to him, he owes an obligation of confidentiality.
Adinop Co Ltd v Rovithai Ltd and another	Court of Appeal	Yes	[2019] 2 SLR 808	Singapore	Cited for the principle that equity may impose a duty of confidence whenever a person receives information in circumstances importing an obligation of confidentiality, subject to the satisfaction of three elements.
Coco v AN Clark (Engineers) Ltd	High Court	Yes	[1969] RPC 41	England and Wales	Cited for the three elements required to establish a duty of confidence in equity.
PH Hydraulics & Engineering Pte Ltd v Intrepid Offshore Constructions Pte Ltd	High Court	Yes	[2012] 4 SLR 36	Singapore	Cited for the three elements required to establish a duty of confidence in equity.
Shlosberg v Avonwick Holdings Ltd	English Court of Appeal	Yes	[2017] 2 WLR 1075	England and Wales	Cited for the principle that a trustee in bankruptcy may take possession of records to which privilege attaches for the discharge of his duties in getting in, realising and distributing the bankrupt’s estate, except that he may not waive the bankrupt’s privilege in taking steps against third parties for the benefit of the bankrupt’s estate.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Evidence Act 1893	Singapore
Insolvency, Restructuring and Dissolution Act 2018	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Legal advice privilege
Duty of confidence
Bankruptcy proceedings
Examination proceedings
Authorized representative
Email chains
Private trustees
RB Investment Trust

15.2 Keywords

legal privilege
bankruptcy
insolvency
evidence
confidentiality
Singapore
High Court

17. Areas of Law

Area Name	Relevance Score
Legal Advice Privilege	90
Insolvency Law	80
Bankruptcy	75
Evidence Law	60
Breach of Confidence	50
Company Law	40
Contract Law	30
Estoppel	25

16. Subjects

Legal Advice Privilege
Bankruptcy
Evidence
Civil Procedure