True Yoga Pte Ltd and others v Wee Ewe Seng Patrick John [2026] SGHC 93

Introduction

In HC/SUM 218/2026 (“SUM 218”), the claimant-creditors (“Claimants”) of the defendant-bankrupt (“Defendant”) applied, pursuant to s 352(6) of the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) (“IRDA”), for the court’s approval of the advantages given to the Claimants over other creditors of the Defendant under a funding agreement dated 9 January 2026 (“Funding Agreement”) between the Claimants and the private trustees of the Defendant’s bankruptcy estate (“PTIBs”).

However, as I find, the Claimants’ application has been made prior to their provision of funding to the PTIBs and prior to any asset of the Defendant having been recovered, protected or preserved by virtue of such funding. In other words, what the Claimants seek is the court’s prospective approval of the advantages given to them under the Funding Agreement. As I also find, the court does not have power under s 352(6) of the IRDA to grant such prospective approval. Nor may the court do so through the exercise of its inherent power. SUM 218 thus fails at the threshold.

Relevant background

The Claimants are judgment creditors of the Defendant. They commenced bankruptcy proceedings against him and obtained a bankruptcy order on 6 October 2025. Under the bankruptcy order, Mr Tan Kim Han and Mr Luke Anthony Furler of Quantuma International were appointed the joint and several PTIBs.

On 9 January 2026, the Claimants and the PTIBs entered into the Funding Agreement, which contained the following salient terms:

On 14 January 2026, the Claimants filed SUM 218 seeking an order that the advantages given to them in the Funding Agreement be approved. The claimants’ application in SUM 218 was made pursuant to s 352(6) of the IRDA.

The PTIBs did not file any affidavit or written submissions in SUM 218.

The defendant’s ex-wife, Ms Cho Min Jung (“Non-Party”), who claimed to be a creditor of the Defendant by virtue of being owed maintenance payments, opposed SUM 218 on the grounds that certain terms in the Funding Agreement were objectionable. Her objections were roundly countered by the Claimants.

However, in the initial round of written submissions, neither the Claimants nor the Non-Party addressed the issue of whether the court had power under s 352(6) of the IRDA to grant the order sought in SUM 218. In my view, this was a fundamental preliminary issue. I directed the Claimants to address this anterior issue in a further round of written submissions and extended the invitation to the Non-Party to do so too if she wished. I will address the Claimants’ submissions in this regard at the relevant junctures below. The Non-Party made no germane submissions on this issue.

Issues to be determined

The issues to be determined are:

(a) Issue 1: Under s 352(6) of the IRDA, prior to a creditor giving any indemnity or making any payment of moneys and prior to the recovery, protection or preservation of any asset of the bankrupt by virtue of such indemnity or payment of moneys, does the court have power to prospectively approve giving that creditor an advantage over other creditors in the distribution of such asset?

(b) Issue 2: If the answer to Issue 1 is in the negative, is the order sought in SUM 218 one for such prospective approval, which the court does not have power under s 352(6) of the IRDA to grant?

(c) Issue 3: If the answer to Issue 2 is in the affirmative, can the court nevertheless make the order sought in SUM 218 pursuant to its inherent power (as the Claimants belatedly contended)?

(d) Issue 4: It is only if I find, one way or the other, that the court has power to make the order sought in SUM 218, that the question arises whether it would be just to grant the order.

Decision on Issue 1

I answer Issue 1 (see [10(a)] above) in the negative.

Section 352(6) of the IRDA provides:

In my view, it is plain from the language of s 352(6) of the IRDA that it is only after:

that such creditor may apply for, and the court may make, an order giving him an advantage over other creditors in the distribution of such asset. Prior to the occurrence of the events described in [(a)] and [(b)], the court does not have power under s 352(6) of the IRDA to make a prospective order.

The Claimants in fact accepted that this was the correct interpretation of s 352(6) of the IRDA, stating expressly in their further written submissions that:

A similar observation on s 352(6) of the IRDA was made by Audrey Lim J in Yiong Kok Kong (as the private trustee in bankruptcy of the bankrupt estate of Goh Ming Hue Julius, a bankrupt) v Liu Chien Min [2023] 4 SLR 1089 (“Yiong Kok Kong”) (at [29]–[31]):

In Yiong Kok Kong, the trustee in bankruptcy of a bankrupt had sought an order that he be empowered to pay out the net proceeds from the sale of the bankrupt’s property to three creditors in priority to other creditors of the bankrupt, pursuant to s 352(6) of the IRDA. While the trustee in bankruptcy subsequently withdrew his prayer for this order, Lim J considered it important to address the stage at which an application under s 352(6) should be made (as set out at [15] above). The Claimants sought to downplay Lim J’s observations. For example, they argued that Yiong Kok Kong did not concern an advantage to be given under a funding agreement. That may be so, but s 352(6) operates in the same manner whether the advantage in question arises pursuant to a funding agreement or otherwise. In any event, the Claimants’ attempt to put distance between their application and Yiong Kok Kong is odd given that their own interpretation of s 352(6) (see [14] above) coheres with Lim J’s observations.

It is also apposite to consider s 328(10) of the Companies Act (Cap 50, 2006 Rev Ed) (“Companies Act”) (now repealed) and the decision of Re Vanguard Energy Pte Ltd [2015] 4 SLR 597 (“Vanguard Energy”), to which Lim J referred.

Prior to its repeal, s 328(10) of the Companies Act provided:

In Vanguard Energy, Chua Lee Ming JC (as he then was) held that it was clear from the language of s 328(10) of the Companies Act that the court had no power to make an order under that provision until after assets had been recovered, protected or preserved, or expenses had been recovered (at [53(b)] and [54]). Chua JC observed that while this interpretation of s 328(10) “could reduce the usefulness of the provision since creditors might be reluctant to provide funding without first having comfort that the risks they are taking will result in a more advantageous distribution for them”, any changes to the position under s 328(10) would have to be effected by Parliament given the clear language of the provision as it stood (at [54]).

Section 328(10) of the Companies Act was worded similarly to s 352(6) of the IRDA, and it is unsurprising that Lim J in Yiong Kok Kong (at [31]) considered Vanguard Energy as support for the interpretation that s 352(6) of the IRDA did not allow the court to make an order thereunder before any asset of the bankrupt was recovered, protected or preserved (see [15] above).

In the event, s 328(10) of the Companies Act was subsequently repealed, and s 204 of the IRDA enacted in its place, by the Insolvency, Restructuring and Dissolution Act 2018 (Act 40 of 2018).

Section 204 of the IRDA provides:

In Song Jianbo v Sunmax Global Capital Fund 1 Pte Ltd [2023] 4 SLR 1575 (“Song Jianbo”), Goh Yihan JC (as he then was) pointed out that the main difference between s 204 of the IRDA and s 328(10) of the Companies Act lay in how s 204(2) read with s 204(3) of the IRDA empowered the court to make the relevant order prospectively, before the relevant creditor provided the relevant funding and before any recovery, protection or preservation of assets or expenses as the case may be (at [12] and [18]):

In my view, the fact that the legislative provision dealing with the similar issue of funding by creditors in the winding up of a company was amended to allow the court to make the relevant order prospectively, reinforces that in the absence of similar legislative amendments in the bankruptcy regime, s 352(6) of the IRDA does not allow the court to make prospective orders.

Indeed, s 204(2) of the IRDA was enacted because Parliament accepted the recommendation in the Report of the Insolvency Law Review Committee: Final Report (2013) (“Final Report”) that “[s]ection 328(10) of the Companies Act should be amended to allow creditors to apply to the court for [the relevant] order of court in advance of providing any funding or indemnity” [emphasis added in italics and bold italics] (Final Report, Recommendation 5.5; Song Jianbo at [17]). This recommendation was made to address the concern that, as s 328(10) of the Companies Act only allowed the court to make a retrospective order, the funding creditors had no certainty at the time of providing the funds or indemnity (a) that the court would later make an order giving them an advantage over other creditors in consideration of the risks run by them, and (b) of the terms of such an order (Final Report at p 74, para 31; Song Jianbo at [17]).

In contrast to the legislative amendments concerning funding by creditors in the winding up regime, no similar legislative amendments have been made in the bankruptcy regime. Section 352(6) of the IRDA remains practically identical to its predecessor provision, s 90(8) of the Bankruptcy Act (Cap 20, 2009 Rev Ed). The absence of change in this regard, in the context where s 204 of the IRDA by contrast changed the previous position under s 328(10) of the Companies Act, further reinforces that s 352(6) of the IRDA can only be read as allowing the court to make retrospective (and not prospective) orders.

To be clear, I see force in the view that prospective orders, which give funding creditors greater assurance and certainty as compared to retrospective orders, would further encourage creditors to fund trustees in bankruptcy and thereby potentially enhance the assets of the bankrupt’s estate for distribution, to the benefit of creditors generally. I also see force in the view that the policy considerations pertaining to funding by creditors should apply similarly in the winding up and bankruptcy regimes. However, I am constrained to observe that any changes to align the position under s 352(6) of the IRDA with the approach under s 204 of the IRDA would have to be effected by Parliament.

Decision on Issue 2

I answer Issue 2 (see [10(b)] above) in the affirmative.

The Claimants argued that they had satisfied what they termed the first precondition under s 352(6) of the IRDA that the relevant creditor must have “given any indemnity or made any payment [of] moneys” because: (a) “[u]nder the Funding Agreement, the Claimants have agreed to provide funding of $70,000 to the PTIBs in the first instance”; and (b) “[t]he Additional Funds and/or Total Funds … to be provided subsequently to the PTIBs also constitute an indemnity as to the amount of additional funding requested by the PTIBs”.

I disagree with the Claimants’ analysis at [29] above. First, pursuant to cl 2.1 of the Funding Agreement (see [5(a)] above), the Funding Agreement does not take effect unless the court has approved its terms. This explains why SUM 218 was taken out quickly on 14 January 2026 on the back of the execution of the Funding Agreement on 9 January 2026: court approval was required for the Funding Agreement to become effective. This means that at this time, the Claimants are not contractually obliged to provide the Initial Funds (or any other funding). Indeed, as the Claimants’ counsel frankly confirmed at today’s hearing, the Claimants have not in fact provided any funding to the PTIBs to-date because the condition precedent in the Funding Agreement requires prior approval of its terms. Second, the Funding Agreement does not in any event oblige the Claimants to provide Additional Funds. Clause 3.2 (see [5(c)] above) specifically stipulates: “The PTIBs agree to give the [Claimants] a right of first offer, and the [Claimants] shall have the right but not the obligation to accept the terms of such an additional funding request within ten (10) Business Days from the date of receipt of the request” [emphasis added]. As cl 3.2 makes plain, and contrary to the Claimants’ suggestion, there is presently no “indemnity as to the amount of additional funding requested by the PTIBs” (see [29] above). In short, it cannot be gainsaid that the Claimants had not at the time they filed SUM 218 and have not hitherto “given any indemnity or made any payment of moneys” to the PTIBs, as is required under s 352(6) of the IRDA before the court may make an order under that provision.

Next, the Claimants argued that the Defendant’s bankruptcy estate included choses in action, specifically, claims, which were assets of the bankruptcy estate. These were “at risk of being lost through inaction”. The Claimants’ provision of funding to the PTIBs “ke[pt] the claims alive”, and thus “protected” and/or “preserved” these assets within the meaning of s 352(6) of the IRDA by preventing them from being lost through neglect, limitation or failure to take necessary procedural steps.

To my knowledge, there is absence of local authority construing what it means under ss 352(6) and/or 204 of the IRDA (or their predecessor provisions) for assets to be “protected or preserved”.

However, and confining myself to the specific ambit of the Claimants’ submission at [31] above, there are Australian decisions which have addressed whether the right to pursue a claim by action may constitute property, and when such right would be found to have been protected or preserved, within the meaning of s 564 of the Corporations Act 2001 (Cth) (“Australian Corporations Act”). As s 564 of the Australian Corporations Act is in pari materia with s 328(10) of the Companies Act (Vanguard Energy at [54]; Song Jianbo at [15]), it is helpful to consider these Australian decisions.

Section 564 of the Australian Corporations Act provides for the court to make orders giving an advantage to funding creditors retrospectively:

In Lombe, Re Babcock & Brown Limited [2012] FCA 107 (“Lombe”), the liquidator of a company applied to the court for orders under s 564 of the Australian Corporations Act to give an advantage to certain creditors of the company who had contributed funds to the liquidator. Those funds had enabled the liquidator to conduct public examinations that led to the acquisition of information that in turn enabled claims to be mounted against former directors and auditors of the company, and those claims (which were settled pursuant to a mediation) had resulted in a substantial recovery of funds by the liquidator (at [2] and [28]). A question that arose for determination was whether it could be said that property had been protected or preserved within the meaning of s 564 (at [38]). The court first reasoned that the fund that was recovered as a result of the mediation might be thought of as the proceeds of a chose in action consisting of the claim against the former directors and auditors, and a chose in action was clearly property (at [40]). The court held that it could be said both that (a) property had been recovered, in the sense that the chose in action was realised through the satisfaction of the claim, and (b) property had been protected and preserved, because “[h]ad no claim been made, the [claim] would, in the fullness of time, have been extinguished by the operation of limitation legislation” (at [41]). The court found that the property would not have been recovered, protected or preserved if the liquidator had not been funded by the relevant creditors’ contributions (at [42]).

The reasoning of the court in Lombe (at [40]–[42]) was adopted by the court in Re Shepherds Producers Co-Operative Ltd [2012] NSWSC 390, which held that property consisting of a chose in action, being the right of the company to bring a claim, was protected and preserved by the funding provided by funding creditors, where it would otherwise have been extinguished by the expiry of the limitation period in due course (at [9]).

The court also expressed the view that, until there was property available for distribution, whether as a result of judgment on or a settlement of the claim that was protected or preserved, an application under s 564 of the Australian Corporations Act would be premature (Currockbilly at [33]):

At today’s hearing, the Claimant’s counsel cited Re Kyra Nominees Pty Ltd (1987) 11 ACLR 767 (“Kyra Nominees”). That case involved an application by the liquidator under s 292(10) of the former Companies Act 1961 (WA) (“Australian Companies Act”), which was in terms similar to s 564 of the Australian Corporations Act save that the term “assets” was used in place of “property” (at 769). The liquidator sought an order with respect to the distribution of moneys recovered in two actions brought by the liquidator. The court held that “[t]he asset of the company in each case as it then existed was a chose in action, being the right to recover moneys” and that the payment of moneys by the funding creditors had “protected and preserved the company’s right to pursue by action its claims for the moneys in fact recovered in those respective actions” (at 772–773).

In my view, it is also significant that the court emphasised that its power was limited to making an order with respect of the “distribution of those assets” as stated in s 292(10) of the Australian Companies Act (Kyra Nominees at 773). The right to pursue a claim by action obviously cannot be distributed in specie. The court thus held that, where such assets were concerned, the expression “distribution of those assets” necessarily extended to the distribution of the realisation of the assets (Kyra Nominees at 773):

In my view, having regard to what has been expressed in the Australian decisions examined above, the relevant principles which apply in the context of s 352(6) of the IRDA are as follows:

(a) A right of the bankrupt that can be enforced by action is a chose in action, and correspondingly, an asset of the bankrupt within the meaning of s 352(6).

(b) Whether or not the right to pursue a claim by action has been “protected” or “preserved” within the meaning of s 352(6) should be assessed practically. For example, the right may be found to have been protected or preserved where steps have been taken which advance the claim, preventing its extinguishment by the expiry of the applicable limitation period.

(c) An applicant under s 352(6) must also show a causal connection between (i) the established protection or preservation of the right and (ii) the indemnity given or payment of moneys made by the funding creditor.

(d) Further, as s 352(6) provides for an order to be made “with respect to the distribution of such asset” [emphasis added] as has been protected or preserved, where the asset comprises a right to pursue a claim by action (which cannot be distributed in specie), it is only logical and sensible to construe the provision as requiring some realisation or monetisation of such asset so that the court may order distribution of the proceeds therefrom. A practical illustration of the point can be seen in cl 6.1 of the Funding Agreement. Notwithstanding the Claimants’ argument that their funding “protected” and/or “preserved” potential claims of the Defendant, cl 6.1 provided for the distribution of “assets recovered from the Claims” [emphasis added] (see [5(h)] above); the Funding Agreement provided for no concept of distribution where “Claims” had merely been “protected” and/or “preserved” with no proceeds recovered or realised therefrom.

(e) Finally, as s 352(6) only allows the court to make retrospective orders, the matters at [(b)]–[(d)] above would have to be established before the court may make the relevant order.

I do not think the legal position assists the Claimants in their submission at [31] above. First and fundamentally, the Claimants have not in fact provided any funding to the PTIBs (see [30] above). Second, it follows that the PTIBs have not used the Initial Funds (which have not been received) towards advancing the supposed claims of the Defendant. It is thus impossible to assess whether any claims have been protected or preserved, much less realised. Indeed, the PTIBs themselves stated in the Preliminary Report that they could not guarantee that any realisations would be made as a result of the provision of funding (see [4] above). The requisite causal connection to the Claimants’ funding also cannot be assessed.

I therefore conclude that the Claimants have not met what they themselves term the “two preconditions” for an order under s 352(6) of the IRDA (see [14] above). They are in fact seeking an order for prospective approval, and (as discussed at [11]–[27] above) the court does not have power under s 352(6) to make such an order.

Decision on Issue 3

I answer Issue 3 (see [10(c)] above) in the negative.

The Claimants submitted that if the court found that s 352(6) of the IRDA covered only retrospective orders, their application could nevertheless still be granted pursuant to the court’s inherent power. I am unable to agree.

In Chan Yun Cheong (trustee of the will of the testator) v Chan Chi Cheong (trustee of the will of the testator) [2021] 2 SLR 67 (“Chan Yun Cheong”), the Court of Appeal held that in order for the court to exercise its inherent power, two conditions must be met: (a) there must be no statutory exclusion of the inherent power; and (b) there must be exceptional circumstances where there is need for the court to use its inherent power in order for justice to be done or injustice to be averted (at [37]). In that case, the Court of Appeal found that it could not exercise its inherent power to compel a co-trustee to consent to a trustee’s retirement. One reason was that doing so would be contrary to the proper statutory interpretation of s 40 of the Trustees Act (Cap 337, 2005 Rev Ed), which required the consent of the co-trustees to the proposed retirement of a trustee (for an effective discharge of the latter) but left the co-trustees’ decision wholly within their discretion (at [36] and [38]). In a similar vein, the Court of Appeal in AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Company) [2022] 1 SLR 771 (“AnAn”) explained that the court is entitled to rely on its inherent power in situations or areas in which no statutory provision applies (at [94]).

In the present case, I have found that s 352(6) of the IRDA empowers the court to make the relevant order retrospectively and not prospectively. In my view, it would be perverse for me to then exercise the court’s inherent power to make an order contrary to what the precise statutory provision governing the situation at hand (viz, s 352(6)) permits. Put another way, the evident import of s 352(6), even though not expressly stated, is that the court is not permitted to make the relevant order prospectively. The court cannot get around this through the exercise of its inherent power.

For completeness, I do not accept the Claimants’ attempt to analogise the circumstances in AnAn to those in the present case. In AnAn, the specific situation of whether the court could order a petitioning creditor to bear the liquidator’s remuneration was not addressed in any legislation, and the Court of Appeal concluded that it had inherent power to make such an order (at [92] and [94]). In contrast, here, s 352(6) of the IRDA precisely addresses when the court may make an order approving the grant of an advantage to a funding creditor over other creditors in the distribution of an asset. The present circumstances are more akin to the situation in Chan Yun Cheong where the Court of Appeal found that it could not exercise its inherent power to make an order contrary to the statutory provision that governed the situation in question (see [46] above). For the reasons explained in [47] above, the court cannot exercise its inherent power to grant the order sought by the Claimants.

Decision on Issue 4

Issue 4 (see [10(d)] above) does not arise. As SUM 218 has been disposed of further to my determination of the preliminary Issues 1, 2 and 3, it is unnecessary and inapposite to address the Claimants and Non-Party’s dispute over the substance of the Funding Agreement. To avoid doubt, the merits of those arguments have not in any way been determined.

Conclusion

The application in SUM 218 is premature and cannot be entertained at this time. I therefore dismiss SUM 218 but on the express understanding that such dismissal is without prejudice to the Claimants bringing another similar application at the appropriate time (see also [49] above).