BNX v BOE and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 26 June 2018
• Neutral Citation: [2018] SGCA 29
• Plaintiff Counsel: Peter Gabriel, Charmaine Jin Jing Xian and Lee Mei Zhen (Gabriel Law Corporation)
• Docket Number: Civil Appeals Nos 61 and 62 of 2017 (Summonses Nos 132 and 133 of 2017)
• Date: 26 June 2018
• Hearing Date: 23 March 2018
• Subject Matter: Implied undertaking not to use discovered documents for collateral or improper purpose,Appeals,Civil Procedure,Admission of further evidence on appeal,Discovery of documents
• Published date: 29 June 2018
• Defendant Counsel: Philip Antony Jeyaretnam SC, Ajinderpal Singh, Yeow Guan Wei, Joel and Kayleigh Noweleen Wee Su-Hui (Dentons Rodyk & Davidson LLP)
• Court: Court of Appeal (Singapore)
• Citation: [2018] SGCA 29
• Year: 2018

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

The discretion to admit further evidence on appeal to the Court of Appeal is one that has, unsurprisingly, been exercised by this court with circumspection. Such cautious treatment of fresh evidence that an applicant seeks to introduce, at the eleventh hour, to the potpourri of factors that an appellate court is already obliged to consider in a civil appeal, is warranted by the need to balance the quest for a just outcome with the countervailing interest of finality in litigation. This balance has been given lucid expression in the three conditions set out by Denning LJ in the celebrated decision in Ladd v Marshall [1954] 1 WLR 1489 (“Ladd v Marshall”), these being non-availability of the evidence at trial, its relevance and materiality to the appeal, and its reliability. Locally, we have embraced the application of the Ladd v Marshall conditions to guide our determination of whether, pursuant to s 37(4) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”) and O 57 r 13(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the ROC”), “special grounds” can be said to exist such that the admission of further evidence on appeal is warranted.

In the present proceedings, the applicant, BNX, seeks to adduce further evidence in support of the two appeals to the Court of Appeal that it has brought against the decision of the High Court judge (“the Judge”), which is reported as BNX v BOE and another matter [2017] SGHC 289 (“the GD”). Court of Appeal Summons No 132 of 2017 (“SUM 132”) is an application to adduce further evidence in Civil Appeal No 61 of 2017 (“CA 61”). That is an appeal brought by BNX against the decision of the Judge in Originating Summons No 871 of 2016 (“OS 871”) to dismiss the application it brought under s 48 of the Arbitration Act (Cap 10, 2002 Rev Ed) (“the AA”) to set aside the arbitral award rendered in favour of BOE, the respondent in these proceedings, in International Chamber of Commerce (“ICC”) Case No 20598/CYK (“the Award”). Court of Appeal Summons No 133 of 2017 (“SUM 133”) is an application to adduce further evidence in Civil Appeal No 62 of 2017 (“CA 62”). That is the appeal of BNX against the decision of the Judge, made on the application of BOE in Summons No 5305 of 2016 (“SUM 5305”), to strike out Suit No 1097 of 2016 (“Suit 1097”), which was a suit commenced by BNX against BOE after the Award had been rendered.

The evidence that BNX seeks to introduce includes correspondence between BOE, the architectural firm hired by BOE (which we refer to as “[A]”), and the Urban Redevelopment Authority (“the URA”). BNX alleges that BOE had wrongfully withheld this correspondence during the arbitration proceedings between BNX and BOE, which culminated in the Award. BNX also seeks leave to adduce the pleadings and some correspondence from another related suit brought by BNX against [A]. BNX further seeks leave to adduce affidavits from the individuals who, BNX alleges, were involved in withholding the correspondence, and leave for both parties to cross-examine those individuals. All these, BNX argues, will show that BOE had prevailed in the earlier arbitration proceedings by committing fraud and perjury, such that the Award ought to be set aside, and that Suit 1097, which was brought by BNX against BOE, ought not to be struck out.

We reserved judgment following the hearing, and now furnish our decision and the accompanying reasons.

Background

We begin by setting out the relevant facts in so far as they bear upon the present applications to adduce further evidence on appeal.

The dispute

The present dispute arose out of a Sale and Purchase Agreement (“the SPA”) dated 16 December 2013 that BNX and BOE entered into for the sale of a hotel in Singapore by BOE to BNX.

BOE acquired a 99-year lease of a parcel of land by way of a grant from the Singapore Government on 17 November 2008. Pursuant to the head lease, BOE was to develop the land in accordance with plans approved by the competent authority under the Planning Act (Cap 232, 1998 Rev Ed), namely, the URA. Among other things, BOE had to ensure that at least 25% of the maximum permissible gross floor area (“GFA”) in the proposed development would be applied for use as a hotel, and at least 60% as office space. In accordance with the guidance provided in a circular issued by the URA on 2 September 2002, facilities within a development that did not fall within the core understanding of hotel use could nonetheless be included in the computation of the space deemed to have been set aside for hotel use as long as these were for the sole and exclusive use of guests and staff of the hotel.

Construction of a mixed-use development at the said parcel of land acquired by BOE took place from late 2010 to October 2013 (“the Development”). During this period, the URA imposed various use restrictions on the Development that mirrored those in the head lease by issuing grants of written permission specifying the restrictions.

On 29 July 2009, the URA issued the first grant of written permission for the Development (“the 2009 GWP”). On 22 October 2009, the URA raised concerns in a letter sent to BOE’s project architects, [A], and suggested that BOE’s plans for the Development failed to attribute the minimum 25% of the GFA for use as a hotel. These concerns stemmed from the fact that various parts of the Development appeared to be for facilities that would commonly be used by members of the public and hence could not be attributed as being for hotel use. At various times between 2009 and 2013, BOE engaged the URA in discussions as to what would be required to ensure that sufficient facilities in the Development could be attributed as being for hotel use. [A] played a significant role in BOE’s discussions with the URA in this connection. [A] advised BOE as to how the URA’s use restrictions could be understood as well as on the effect of the restrictions on who could operate or patronise the facilities in question, and communicated with the URA on BOE’s behalf.

On 20 July 2010, the URA informed BOE that the meeting rooms on the third floor of the Development could be attributed as being for hotel use only if BOE provided a letter of undertaking declaring that those spaces were not to be open for use by the public. The URA further required those spaces to be annotated in the plans to state that they would be “for hotel staff use only”, and also intimated that it would subsequently impose a condition in its written permission to that effect. On 14 October 2010, BOE undertook to the URA in writing (“the October 2010 Undertaking”) as follows:

We refer to our consultant’s clarification regarding 3rd storey hotel meeting room GFA quantum via email correspondence 28 July 2010 and 02 August 2010 and URA’s reply dated 12 August requesting for Letter of Undertaking.

We hereby agree and undertake that meeting rooms computed under Hotel quantum will be for hotel guests and staff use only (not open to public).

[emphasis added in italics and bold italics]

On 27 March 2013, following a request from the URA for clarification of BOE’s intentions in respect of the use of the food and beverage facilities (also referred to as guest lounges) on the 32nd and 33rd floors and the executive lounge, spa, gym and meeting rooms on the 35th floor, BOE furnished the URA with another written undertaking (“the March 2013 Undertaking”) as follows:

We refer to our consultant’s meeting with URA held on 5 March 2013 for clarification on hotel facilities GFA quantum and noted that URA requested for Letter of Undertaking.

We hereby agree and undertake that 32nd and 33rd Storey Guest Lounges, 35th Storey Health & Fitness Centre, Treatment Rooms, Business Centre Meeting Rooms and Executive Lounge computed under Hotel quantum will be for hotel quests and staff use only.

[emphasis added in italics and bold italics]

On 10 May 2013, BOE gave the URA yet another written undertaking (“the May 2013 Undertaking”) as follows:

We refer to our consultant’s meeting with URA held on 5 March 2013 for clarification on hotel facilities GFA quantum and noted that URA requested for Letter of Undertaking.

We hereby agree and undertake that:

32nd and 33rd Storey Guest Lounges computed under Hotel quantum will be for hotel guests and staff use only.

35th Storey Health & Fitness Centre, Treatment Rooms, Business Centre Meeting Rooms and Executive Lounge computed under Hotel quantum will be for hotel guests [sic] use only. From 32nd Storey Hotel Lobby, hotel guests need to transfer to another set of Lifts … to access the upper hotel floors (including 35th Storey). This set of Lifts is card controlled hence access is restricted for hotel guests only.

[emphasis added in italics and bold italics]

On 23 May 2013, the URA issued another grant of written permission in respect of the Development (“the May 2013 GWP”). The May 2013 GWP granted BOE planning permission, subject to the condition that the facilities within the Development that were the subjects of the October 2010 Undertaking, the March 2013 Undertaking and the May 2013 Undertaking (specifically, the third floor meeting room, the 32nd and 33rd floor food and beverage facilities, and the 35th floor executive lounge, spa, gym and meeting rooms, henceforth referred to as “the Relevant Facilities”) would be restricted for the exclusive use of hotel guests and staff, and would not be open to the public.

In July 2013, BNX, which was looking to purchase a hotel in Singapore, approached BOE and inquired about purchasing the Development. BNX was keen to complete the acquisition of any property before the end of 2013 so as to enjoy a tax benefit worth about US$40m in the country of origin of its parent holding company.

On 2 September 2013, the Temporary Occupation Permit (“TOP”) was issued for the...