Singapore High Court delivers significant decision involving interaction between insolvency and arbitration, and provides important guidance on entire agreement clauses

16 December 2025

Kardachi, Jason Aleksander v Deepak Mishra [2025] SGHC 218

In the recent decision of Kardachi, Jason Aleksander v Deepak Mishra, the General Division of the High Court of Singapore decided three interlocking applications at the intersection of insolvency, arbitration, and contract law.

The decision is significant in outlining several issues involving the interaction between arbitration law and insolvency law, many of which are for the first time. The decision is also important as being one of the first cases where a properly drafted entire agreement clause has been held to exclude implied duties of good faith.

The court held as follows:

• Leave of court is required to commence proceedings against bankruptcy trustees, even if those proceedings are to take place via arbitration or in relation to a contract entered into by the bankruptcy trustees themselves.
• Such leave should not be granted where not even a prima facie arguable case on the merits of such arbitration proceedings had been demonstrated. On the facts of the case, the entire agreement clause in the contract in question was clear enough to exclude an implied duty of good faith, which the bankruptcy trustees were alleged to have breached.
• No case management stay should be ordered in favour of arbitration, in circumstances where the arbitration seeks to injunct insolvency clawback claims from being brought. Insolvency clawback claims are not arbitrable, because the public policy protecting creditors’ interests in bankruptcy trumps the public policy of giving effect to arbitration clauses.
• The ends of justice militate against granting case management stays in respect of insolvency clawback claims. In clawback actions, assets have already been allegedly dissipated once, giving rise to a real risk of further dissipation during the period of a stay.

The successful private trustees in this case were Mr Jason Aleksander Kardachi and Mr Hamish Alexander Christie, as joint and several private trustees of the bankruptcy estate of Mr Rajesh Bothra (“Private Trustees”).

Allen & Gledhill Partner Alexander Lawrence Yeo and Counsel Ee Jia Min represented the successful Private Trustees.

Background

Mr Bothra was placed into bankruptcy in 2021, after which the Private Trustees investigated the affairs and dealings of Mr Bothra. To this end, the Private Trustees entered into a Waiver and Consent Agreement (“Waiver Agreement”) with Mr Bothra’s former close friend and business associate, Mr Deepak Mishra, pursuant to which Mr Mishra claimed to have provided information to the Private Trustees.

Subsequently, the Private Trustees commenced proceedings in the High Court in HC/OC 28/2025 in relation to 14 disposals of assets and/or cash to Mr Mishra, his wife, and alleged companies. The Private Trustees alleged that these disposals were undervalue transactions, unfair preferences, unauthorised void post-bankruptcy disposals, fraudulent conveyances, and/or sham transactions such that each transferred asset remained beneficially owned by Mr Bothra.

The Private Trustees applied for and subsequently obtained summary judgment in respect of three of the 14 claims. After the summary judgment application, Mr Mishra commenced arbitration (“Arbitration”) against the Private Trustees alleging that:

• the Private Trustees had breached an express and/or implied duty of good faith under the Waiver Agreement in commencing clawback proceedings against Mr Mishra, and/or using documents provided by Mr Mishra against him in HC/OC 28/2025; and
• the Private Trustees had breached an implied term that the documents provided by Mr Mishra to the Private Trustees under the Waiver Agreement would only be used for the purposes of the Private Trustees’ investigations into the affairs and dealings of Mr Bothra, and not for other collateral purposes.

The Private Trustees noted that Mr Mishra had not obtained leave of court to commence the Arbitration, and made an application for Mr Mishra to be restrained from proceeding with the Arbitration.

Mr Mishra thereafter applied for:

• a case management stay in favour of arbitration; and
• a declaration that no leave of court was necessary to commence the Arbitration, or alternatively for retrospective leave of court.

The court allowed the Private Trustees’ application and dismissed Mr Mishra’s applications.

Leave of court requirement to commence arbitration against bankruptcy trustees

The court held that leave of court was required before commencing arbitration against bankruptcy trustees.

Mr Mishra sought to argue that no leave of court should be required to commence (i) arbitration, because section 420(2) of the Insolvency, Restructuring and Dissolution Act 2018 (“IRDA”) provides that an arbitration clause is enforceable against the Official Assignee or bankruptcy trustee if they adopt a contract containing an arbitration clause; or (ii) claims under a contract that the Private Trustees voluntarily entered into. Mr Mishra also argued that the Private Trustees had not previously sought to block other unrelated proceedings by Mr Mishra against them, and that the Private Trustees should not be permitted to approbate and reprobate.

The court rejected each argument, holding that the requirement for leave is to protect the assets of an insolvent estate by filtering out unnecessary and expensive legal proceedings arising from frivolous claims. The court disagreed that section 420(2) of IRDA obviated the need for leave of court - the text of section 420(2) relates to whether an arbitration clause is enforceable, not whether leave is required. The court also held that the other unrelated proceedings raised by Mr Mishra did not give rise to the doctrine of approbation and reprobation. At best the Private Trustees had simply declined to exercise their right to object to the unrelated proceedings, which did not waive their right to insist on leave of court to commence the Arbitration.

Express and/or implied duties of good faith, and their interaction with entire agreement clauses

The court held that Mr Mishra had failed to establish even a prima facie arguable case on the merits of his Arbitration. In particular, Mr Mishra claimed that the bankruptcy trustees had breached an express and/or implied duty of good faith in a contract.

The court first held that there was no express duty of good faith, as no relevant contractual clause provided for it.

More importantly, the court went on to hold that the entire agreement clause in the Waiver Agreement was clear enough to exclude any implied duty of good faith in law or in fact. While the Court of Appeal has previously held that the presence of an entire agreement clause in a contract “would not, as a matter of general principle, exclude the implication of terms into that contract”, the court held that entire agreement clauses could have such an effect if expressed in clear and unambiguous language. In this case, the clause provided that “no other terms and conditions shall be included or implied”. The court held that this was clear enough to exclude an implied duty of good faith.

Further, the Singapore position is that there is no general implied duty of good faith based on a “term implied in law”. The court rejected Mr Mishra’s argument that a duty of good faith may be implied into the Waiver Agreement in fact, noting that the specific implied duties of good faith alleged by Mr Mishra were contrary to express terms of the Waiver Agreement.

No case management stay should be ordered in favour of arbitration, in circumstances where the arbitration seeks to injunct insolvency clawback claims from being brought

The key issue to be determined in the Arbitration commenced by Mr Mishra was whether alleged breaches by the Private Trustees of the Waiver Agreement should preclude them from bringing insolvency clawback claims.

The court held that insolvency clawback actions are brought for the benefit of the bankruptcy estate, and creditors’ interests as a collective whole. Accordingly, the public policy underlying protection of insolvency practitioners’ ability to pursue such claims trumps any factor pointing to arbitration. The issue of whether an insolvency practitioner should be allowed to bring such insolvency clawback claims is hence not arbitrable, as this would run contrary to the objectives of the insolvency regime.

Finally, the court noted that the ends of justice militate against granting case management stays in respect of insolvency clawback claims. In clawback actions, assets have already been allegedly dissipated once, giving rise to a real risk of further dissipation during the period of a stay.

Conclusion

The Singapore courts have, in various cases, upheld the strong public policy behind both insolvency clawback and officeholders claims and arbitration proceedings. This case provides useful guidance on the increasingly common interaction between insolvency law and arbitration law, and on the law of implied terms and entire agreement clauses.

Reference materials

The judgment is available on the Singapore Courts website www.judiciary.gov.sg.