BNX v BOE: Admission of Further Evidence on Appeal and Implied Undertaking

In BNX v BOE, the Singapore Court of Appeal addressed two civil appeals, CA 61 and CA 62, concerning the admission of further evidence. BNX sought to introduce new evidence to challenge an arbitral award in favor of BOE and to prevent the striking out of Suit 1097. The court, led by Sundaresh Menon CJ, Judith Prakash JA, and Steven Chong JA, dismissed the applications, citing the Riddick principle and the Ladd v Marshall test, emphasizing the need to balance justice with finality in litigation. The court found that the evidence could have been obtained with reasonable diligence and did not demonstrate fraud.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

1.2 Outcome

Applications to adduce further evidence on appeal dismissed.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore Court of Appeal addresses admitting further evidence on appeal and the implied undertaking not to misuse discovered documents.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
BNXApplicant, Plaintiff, AppellantCorporationApplication DismissedLost
BOERespondent, DefendantCorporationApplication GrantedWon

3. Judges

Judge NameTitleDelivered Judgment
Sundaresh MenonChief JusticeYes
Judith PrakashJudge of AppealNo
Steven ChongJudge of AppealNo

4. Counsels

Counsel NameOrganization
Peter GabrielGabriel Law Corporation
Charmaine Jin Jing XianGabriel Law Corporation
Lee Mei ZhenGabriel Law Corporation
Ajinderpal SinghDentons Rodyk & Davidson LLP
Philip Antony JeyaretnamDentons Rodyk & Davidson LLP
Yeow Guan WeiDentons Rodyk & Davidson LLP
JoelDentons Rodyk & Davidson LLP
Kayleigh Noweleen Wee Su-HuiDentons Rodyk & Davidson LLP

4. Facts

  1. BNX and BOE entered into a Sale and Purchase Agreement (SPA) on 16 December 2013 for the sale of a hotel in Singapore.
  2. BOE was to develop the land in accordance with plans approved by the URA, with at least 25% of GFA for hotel use and 60% for office space.
  3. The URA issued various use restrictions on the Development, mirroring those in the head lease.
  4. BOE provided letters of undertaking to the URA, restricting the use of certain facilities to hotel guests and staff only.
  5. BNX was keen to complete the acquisition of any property before the end of 2013 to enjoy a tax benefit.
  6. BOE established a virtual and physical data room for BNX's due diligence review.
  7. BNX commenced arbitration proceedings against BOE, alleging fraudulent misrepresentation and breach of contract.

5. Formal Citations

  1. BNX v BOE and another appeal, , [2018] SGCA 29
  2. BNX v BOE, Civil Appeal No 61 of 2017, Civil Appeal No 61 of 2017
  3. BNX v BOE, Civil Appeal No 62 of 2017, Civil Appeal No 62 of 2017

6. Timeline

DateEvent
BOE acquired a 99-year lease of land from the Singapore Government.
URA issued the first grant of written permission for the Development.
URA raised concerns about BOE's plans failing to allocate the minimum GFA for hotel use.
URA informed BOE that meeting rooms could be attributed to hotel use only with a letter of undertaking.
BOE provided the October 2010 Undertaking to the URA.
BOE furnished the URA with the March 2013 Undertaking.
BOE gave the URA the May 2013 Undertaking.
URA issued another grant of written permission in respect of the Development.
BNX approached BOE about purchasing the Development.
Temporary Occupation Permit issued for the Development.
BNX offered to purchase the Development for S$475m.
URA issued the October 2013 GWP to [A] on behalf of BOE.
BOE agreed to sell the Development to BNX.
BOE signed its acceptance of the offer letter from BNX.
BNX submitted due diligence queries to BOE.
EC Harris visited the physical data room.
The hotel commenced operations.
WongPartnership drew BNX's attention to URA letters in the virtual data room.
WongPartnership advised BNX on GFA requirements; BNX requested follow-up details from BOE.
BNX sought a copy of the October 2013 GWP.
BOE provided the October 2013 GWP.
WongPartnership produced its legal due diligence report.
BNX and BOE signed the SPA.
BNX and BOE entered into a lease agreement.
The lease agreement was registered.
BNX became aware of URA restrictions on the Relevant Facilities.
BNX commenced arbitration proceedings against BOE.
The arbitral tribunal was duly constituted.
Tribunal issued Procedural Order No 1.
BNX filed its Statement of Case.
BOE filed its Statement of Defence.
Parties exchanged requests for document production.
Tribunal ruled on document production requests.
BOE served its Statement of Rejoinder.
BNX requested disclosure of various documents.
BNX requested disclosure of various documents.
BNX requested disclosure of various documents.
BNX applied to the Tribunal for an order for BOE to produce documents.
BOE responded to BNX, declining to produce further documents.
Tribunal dismissed BNX's application for further document disclosure.
Oral hearings for the arbitration began.
Oral hearings for the arbitration concluded.
Tribunal issued the Award, dismissing all of BNX's claims.
BNX commenced OS 651, seeking leave to appeal against the Award.
BNX commenced OS 735, seeking leave to serve pre-action interrogatories on [A].
BNX commenced OS 871, seeking to set aside the Award.
OS 651 was dismissed by an assistant registrar.
BNX commenced Suit 1097, seeking to rescind the lease agreement.
BOE filed SUM 5305 to strike out Suit 1097.
BNX's appeal to a High Court judge in chambers was dismissed.
Judge dismissed OS 871 and granted BOE's application to strike out Suit 1097.
BNX filed CA 61 and CA 62.
BNX commenced Suit 585 against [A].
BNX commenced Suit 585 against [A].
[A] filed its defence in Suit 585.
[A] amended its defence in Suit 585.
BNX filed SUM 132 and SUM 133, seeking leave to adduce further evidence.
Judgment reserved.
Judgment delivered.

7. Legal Issues

  1. Admission of Further Evidence on Appeal
    • Outcome: The court dismissed the applications to adduce further evidence, finding that the evidence could have been obtained with reasonable diligence and did not demonstrate fraud.
    • Category: Procedural
    • Sub-Issues:
      • Non-availability of evidence at trial
      • Relevance and materiality of evidence to the appeal
      • Reliability of evidence
  2. Implied Undertaking Not to Use Discovered Documents for Collateral Purpose
    • Outcome: The court held that the Riddick principle applied, precluding the use of documents obtained during discovery in another suit without the releasing court's permission.
    • Category: Procedural
    • Sub-Issues:
      • Use of discovered documents for purposes other than the action in which discovery was obtained
      • Obligation owed to the court
      • Release from the implied undertaking

8. Remedies Sought

  1. Rescission of SPA
  2. Refund of price
  3. Damages

9. Cause of Actions

  • Fraudulent Misrepresentation
  • Breach of Contract

10. Practice Areas

  • Commercial Litigation
  • Arbitration

11. Industries

  • Hospitality
  • Construction

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Ladd v MarshallEnglish Court of AppealYes[1954] 1 WLR 1489England and WalesEstablished the three conditions for admitting further evidence on appeal: non-availability, relevance and materiality, and reliability.
Beckkett Pte Ltd v Deutsche Bank AGCourt of Appeal of SingaporeYes[2005] 3 SLR(R) 555SingaporeExplained the Riddick principle regarding the implied undertaking not to use discovered documents for collateral purposes.
Riddick v Thames Board Mills LtdEnglish Court of AppealYes[1977] QB 881England and WalesEstablished the Riddick principle, which creates an implied undertaking not to use discovered documents for collateral or improper purposes.
Prudential Assurance Co Ltd v Fountain Page LtdNot AvailableYes[1991] 1WLR 756England and WalesStated that the implied undertaking is an obligation owed to the court, which only the court can modify.
Hong Lam Marine Pte Ltd and another v Koh Chye HengHigh Court of SingaporeYes[1998] 3 SLR(R) 526SingaporeExplained that the Riddick principle does not apply to documents that have been voluntarily disclosed in the course of legal proceedings.
Tay Kar Oon v TahirCourt of Appeal of SingaporeYes[2017] 2 SLR 342SingaporeReiterated the Ladd v Marshall conditions for admitting further evidence on appeal.
Sanum Investments Ltd v Government of the Lao People’s Democratic RepublicCourt of Appeal of SingaporeYes[2016] 5 SLR 536SingaporeReiterated the Ladd v Marshall conditions for admitting further evidence on appeal.
Mykytowych, Pamela Jane v V I P HotelCourt of Appeal of SingaporeYes[2016] 4 SLR 829SingaporeReiterated the Ladd v Marshall conditions for admitting further evidence on appeal.
Tan Hwee Lan v Tan Cheng Guan and another appeal and another matterCourt of Appeal of SingaporeYes[2012] 4 SLR 785SingaporeReiterated the Ladd v Marshall conditions for admitting further evidence on appeal.
Chan Ah Beng v Liang and Sons Holdings (S) Pte Ltd and another applicationCourt of Appeal of SingaporeYes[2012] 3 SLR 1088SingaporeReiterated the Ladd v Marshall conditions for admitting further evidence on appeal.
GAK v GALCourt of Appeal of SingaporeYes[2013] SGCA 19SingaporeAcknowledged that there are certain exceptional circumstances where the court would be entitled, in its discretion, to admit further evidence on appeal even though the Ladd v Marshall criteria might not, strictly speaking, be met.
Wong Phila Mae v Shaw HaroldCourt of Appeal of SingaporeYes[1991] 1 SLR(R) 680SingaporeExample of situations where some attenuation of the requirements might be called for include those where a party has been denied a fair opportunity by the trial judge to put forth relevant facts before the court.
Cheng-Wong Mei Ling Theresa v Oei Hong LeongCourt of Appeal of SingaporeYes[2006] 2 SLR(R) 637SingaporeExample of situations where some attenuation of the requirements might be called for include those where the trial judge made a decision on a new point of a substantial nature that the parties did not have the opportunity to address.
Su Sh-Hsyu v Wee Yue ChewCourt of Appeal of SingaporeYes[2007] 3 SLR(R) 673SingaporeWhere the fresh evidence uncovers the fraud or deception of the other party, and such fraud strikes at the very root of the litigation [or arbitration], then, provided the second and third conditions in Ladd v Marshall [(ie, relevance and credibility)] are cumulatively satisfied, the court would, in exceptional circumstances, be prepared to exercise measured flexibility in relation to the application of the first Ladd v Marshall condition [(ie, non-availability)].
Prometheus Marine Pte Ltd v King, Ann Rita and another appealCourt of Appeal of SingaporeYes[2018] 1 SLR 1SingaporeRecognized that fraud encompasses “a showing of bad faith during the arbitration proceedings, such as bribery, undisclosed bias of the arbitrator, or wilful destruction or withholding of evidence”
Beijing Sinozonto Mining Investment Co Ltd v Goldenray Consortium (Singapore) Pte LtdHigh Court of SingaporeYes[2014] 1 SLR 814SingaporeRecognized that fraud encompasses “a showing of bad faith during the arbitration proceedings, such as bribery, undisclosed bias of the arbitrator, or wilful destruction or withholding of evidence”
United Overseas Bank Ltd v Bebe bte MohammadCourt of Appeal of SingaporeYes[2006] 4 SLR(R) 884SingaporeThe hallmark of fraud is “dishonesty or moral turpitude”
Ching Chew Weng Paul, deceased, and others v Ching Pui Sim and othersHigh Court of SingaporeYes[2011] 3 SLR 869SingaporeDishonesty is the cornerstone for fraud, and added that “inadvertent errors in the evidence, the drawing of wrong inferences, conjectures, lack of corroborative evidence or even false evidence … short of actual and deliberate fraud would not be sufficient to discharge the burden of proof [of establishing fraud]”
Yeo Chong Lin v Tay Ang Choo Nancy and another appealCourt of Appeal of SingaporeYes[2011] 2 SLR 1157SingaporeFurther evidence which will materially alter the basis of the decision should be allowed.
TDT v TDS and another appeal and another matterCourt of Appeal of SingaporeYes[2016] 4 SLR 145SingaporeFollowed the approach in Yeo Chong Lin.
Zhu Xiu Chun (alias Myint Myint Kyi) v Rockwills Trustee Ltd (administrators of the estate of and on behalf of the dependants of Heng Ang Tee Franklin, deceased) and other appealsCourt of Appeal of SingaporeYes[2016] 5 SLR 412SingaporeThe justification behind admitting further evidence as to matters occurring after the date of the judgment is that the further evidence ‘materially affects the basis of the earlier decision’ and ‘the change must substantially affect a basic assumption made at the trial’
BNX v BOE and another matterHigh Court of SingaporeYes[2017] SGHC 289SingaporeThe High Court decision that is being appealed.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)Singapore
Rules of Court (Cap 322, R 5, 2014 Rev Ed)Singapore
Arbitration Act (Cap 10, 2002 Rev Ed)Singapore
Planning Act (Cap 232, 1998 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Sale and Purchase Agreement
  • Gross Floor Area
  • Urban Redevelopment Authority
  • Letter of Undertaking
  • Due Diligence
  • Arbitration
  • Implied Undertaking
  • Riddick Principle
  • Ladd v Marshall
  • Further Evidence

15.2 Keywords

  • evidence
  • appeal
  • arbitration
  • fraud
  • discovery
  • undertaking
  • litigation
  • Singapore
  • civil procedure

17. Areas of Law

Area NameRelevance Score
Appellate Practice80
Civil Procedure75
Arbitration60
Fraud and Deceit50
Riddick Undertaking40
Misrepresentation40
Setting aside arbitral awards40
Striking out30
Deceit30
Contract Law30
Procedural fraud30
Duty of Candour25
Restraint of Proceedings20
Estoppel20
Summary Judgement20
Interpretation of contractual terms20
Affidavits20
Law of Pleadings20
Inherent Power of the Court20
Contractual Remedies20
Existence of arbitration agreement20

16. Subjects

  • Civil Procedure
  • Arbitration
  • Contract Law
  • Evidence