BNX v BOE: Setting Aside Arbitration Award for Fraudulent Misrepresentation and Breach of Contract

In BNX v BOE, the Singapore High Court addressed an application by BNX to set aside an arbitration award and an application by BOE to strike out BNX's action. The dispute arose from BNX's acquisition of a business from BOE, with BNX alleging fraudulent misrepresentation and breach of warranty regarding the permissibility of public access to certain facilities. The arbitration tribunal dismissed BNX's claims. Justice Vinodh Coomaraswamy dismissed BNX's application to set aside the award and allowed BOE's application to strike out BNX's action, finding the action to be an abuse of process and legally unsustainable.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Plaintiff's setting aside application dismissed; Defendant's striking out application allowed.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Singapore High Court decision on setting aside an arbitration award. The case involves fraudulent misrepresentation and breach of contract claims.

1.7 Decision Date

20 November 2017

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
BNX	Plaintiff, Applicant	Corporation	Setting aside application dismissed; Action struck out	Lost	Peter Gabriel of Gabriel Law Corporation Kevin Au of Gabriel Law Corporation Charmaine Jin of Gabriel Law Corporation
BOE	Defendant, Respondent	Corporation	Setting aside application dismissed; Striking out application allowed	Won	Ajinderpal Singh of Dentons Rodyk & Davidson LLP Philip Jeyaretnam SC of Dentons Rodyk & Davidson LLP Joel Yeow of Dentons Rodyk & Davidson LLP Kayleigh Wee of Dentons Rodyk & Davidson LLP

3. Judges

Judge Name	Title	Delivered Judgment
Vinodh Coomaraswamy	Judge	Yes

4. Counsels

Counsel Name	Organization
Peter Gabriel	Gabriel Law Corporation
Kevin Au	Gabriel Law Corporation
Charmaine Jin	Gabriel Law Corporation
Ajinderpal Singh	Dentons Rodyk & Davidson LLP
Philip Jeyaretnam SC	Dentons Rodyk & Davidson LLP
Joel Yeow	Dentons Rodyk & Davidson LLP
Kayleigh Wee	Dentons Rodyk & Davidson LLP

4. Facts

The plaintiff acquired a business from the defendant in December 2013.
The plaintiff claimed the defendant fraudulently misrepresented that the public could patronize certain facilities.
The URA had imposed a condition restricting the use of these facilities to customers and staff.
The plaintiff learned of the URA restriction in July 2014.
The parties' rights were governed by a sale and purchase agreement (SPA) dated 16 December 2013.
The SPA contained an arbitration agreement.
The plaintiff initiated arbitration against the defendant in October 2015, claiming fraudulent misrepresentation and breach of warranty.

5. Formal Citations

BNX v BOE and another matter, Originating Summons No 871 of 2016 and Suit No 1097 of 2016 (Summons No 5305 of 2016), [2017] SGHC 289

6. Timeline

Date	Event
2013-12-01	Plaintiff acquired a business from the defendant.
2013-12-16	Sale and purchase agreement signed.
2014-07-01	Plaintiff learned of URA restriction.
2015-10-01	Plaintiff initiated arbitration against the defendant.
2016-01-01	Tribunal constituted.
2016-06-01	Tribunal delivered its final award.
2016-08-01	Plaintiff applied to set aside the award.
2016-10-01	Plaintiff commenced an action against the defendant in the High Court on the lease.
2017-03-08	Court ordered the file to be sealed.
2017-11-21	Judgment issued.

7. Legal Issues

Setting Aside Arbitration Award
- Outcome: The court dismissed the application to set aside the arbitration award.
- Category: Procedural
- Sub-Issues:
  - Tribunal exceeding jurisdiction
  - Breach of natural justice
  - Award contrary to public policy
- Related Cases:
  - [2016] 1 SLR 549
  - [2007] 1 SLR(R) 597
  - [2012] 4 SLR 98
  - [2013] 1 SLR 125
  - [2005] 2 SLR(R) 270
  - [2008] 3 SLR(R) 447
  - [2011] 4 SLR 739
  - [2008] 2 SLR(R) 929
Fraudulent Misrepresentation
- Outcome: The tribunal found that there were no representations, no misrepresentations, no reliance, and no dishonesty.
- Category: Substantive
Breach of Contract
- Outcome: The tribunal rejected the plaintiff's claim that the SPA was illegal and that the defendant lacked the power and authority to sell the business.
- Category: Substantive
Res Judicata
- Outcome: The court found that the plaintiff's action was barred by the doctrine of res judicata and constituted an abuse of process.
- Category: Procedural
- Sub-Issues:
  - Cause of action estoppel
  - Issue estoppel
  - Abuse of process
- Related Cases:
  - [2015] 5 SLR 1104
  - [2007] 1 SLR(R) 453
  - [2009] 1 SLR(R) 875

8. Remedies Sought

Setting Aside Arbitration Award
Damages
Rescission of Contract

9. Cause of Actions

Fraudulent Misrepresentation
Breach of Contract
Breach of Warranty

10. Practice Areas

Arbitration
Commercial Litigation

11. Industries

Real Estate
Hospitality

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
AMZ v AXX	High Court	Yes	[2016] 1 SLR 549	Singapore	Cited for the two-step analysis for setting aside an award on the ground that the tribunal exceeded its jurisdiction.
PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA	Court of Appeal	Yes	[2007] 1 SLR(R) 597	Singapore	Cited for the two-step analysis for setting aside an award on the ground that the tribunal exceeded its jurisdiction.
PT Prima International Development v Kempinski Hotels SA and other appeals	Court of Appeal	Yes	[2012] 4 SLR 98	Singapore	Cited regarding the demarcation of a tribunal’s jurisdiction by the submission to arbitration.
L W Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd and another appeal	Court of Appeal	Yes	[2013] 1 SLR 125	Singapore	Cited for the requirements to show a breach of the rules of natural justice.
Permasteelisa Pacific Holdings Ltd v Hyundai Engineering & Construction Co Ltd	High Court	Yes	[2005] 2 SLR(R) 270	Singapore	Cited for the inapplicability of the law of hearsay and the manner of proving the truth of written statements as set down in the Evidence Act in arbitration proceedings.
Lee Chez Kee v PP	Court of Appeal	Yes	[2008] 3 SLR(R) 447	Singapore	Cited for the principle that a statement made out of court is hearsay and inadmissible only if adduced to prove the truth of the facts set out in the statement.
AJU v AJT	High Court	Yes	[2011] 4 SLR 739	Singapore	Cited for the court's power to decide what the public policy of Singapore is and to set aside an award if the tribunal has ignored “palpable and indisputable illegality”.
VV and another v VW	High Court	Yes	[2008] 2 SLR(R) 929	Singapore	Cited for the requirement that a party who wishes to set aside an award on the ground that it is contrary to public policy must establish two things: identify the rule or principle of public policy and ascertain the part of the award conflicting with that public policy.
Thoday v Thoday	Probate Division	Yes	[1964] P 181	England and Wales	Cited for the principle of cause of action estoppel.
Zhang Run Zi v Koh Kim Seng and another	High Court	Yes	[2015] SGHC 175	Singapore	Cited for the elements of cause of action estoppel.
Goh Nellie v Goh Lian Teck and others	High Court	Yes	[2007] 1 SLR(R) 453	Singapore	Cited for the principles of res judicata and the abuse of process doctrine.
Lee Tat Development Pte Ltd v Management Corporation of Strata Title Plan No 301	High Court	Yes	[2009] 1 SLR(R) 875	Singapore	Cited for the elements to be satisfied for a party to raise issue estoppel successfully.
The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal	Court of Appeal	Yes	[2015] 5 SLR 1104	Singapore	Cited for the comprehensive discussion of the doctrine of res judicata.
Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others	Court of Appeal	Yes	[1997] 3 SLR(R) 649	Singapore	Cited for the definition of 'abuse of process' and the court's power to prevent litigants from vexing and oppressing other parties.
The Bunga Melati 5	High Court	Yes	[2012] 4 SLR 546	Singapore	Cited for the requirement that an action must be 'plainly or obviously' unsustainable to be struck out as frivolous or vexatious.
Archbolds (Freightage) Ltd v S Spanglett Ltd	Queen's Bench	Yes	[1961] 1 QB 374	England and Wales	Cited for the proposition that a party cannot claim under a contract if it has to rely on its own illegal act to prove his rights under that contract.
Ting Siew May v Boon Lay Choo and another	High Court	Yes	[2014] 3 SLR 609	Singapore	Cited for the principle that the court has to calibrate a proportionate response to illegality in each case.
Overseas Union Enterprise Ltd v Three Sixty Degree Pte Ltd and another suit	High Court	Yes	[2013] 3 SLR 1	Singapore	Cited for the principle that covenants for quiet enjoyment and non-derogation from grant operate prospectively.

13. Applicable Rules

Rule Name
Rules of Court (Cap 322, R5, 2014 Rev Ed) (“ROC”) O 18 r 19

14. Applicable Statutes

Statute Name	Jurisdiction
Arbitration Act (Cap 10, 2002 Rev Ed)	Singapore
Evidence Act (Cap 97, 1997 Rev Ed)	Singapore
Planning Act (Cap 232, 1998 Ed)	Singapore
Rules of Court (Cap 322, R5, 2014 Rev Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Arbitration Award
Fraudulent Misrepresentation
Breach of Warranty
Sale and Purchase Agreement
Urban Redevelopment Authority
Use Restriction
Res Judicata
Abuse of Process

15.2 Keywords

arbitration
fraudulent misrepresentation
breach of contract
setting aside
res judicata
abuse of process
URA
Singapore

17. Areas of Law

Area Name	Relevance Score
Arbitration	95
Res Judicata	75
Setting aside	70
Civil Practice	70
Striking out	65
Recourse against award	60
Misrepresentation	60
Contract Law	50
Estoppel	40

16. Subjects

Arbitration
Contract Law
Civil Procedure
Fraud