"I hold that the doctrine of approbation and reprobation does not apply on the facts of this case to bar the plaintiff from seeking to set aside the Final Corrected Award in OS 433 or the Leave Order. Accordingly, I turn now to address the substantive merits of the plaintiff’s challenge against the Corrected Final Award." — Per S Mohan J, Para 55
Case Information
- Citation: [2022] SGHC 17 (Para 0)
- Court: In the General Division of the High Court of the Republic of Singapore (Para 0)
- Date: 25 January 2022 (Para 0)
- Coram: S Mohan J (Para 0)
- Counsel for the plaintiff: Mr Edmund Kronenburg (Para 0)
- Counsel for the defendants: Mr Christopher Chuah (Para 0)
- Case numbers: Originating Summons No 433 of 2021; Originating Summons No 212 of 2021 (Summons No 2174 of 2021) (Para 0)
- Area of law: Arbitration — Award — Recourse against award — Setting aside; Arbitration — Award — Recourse against award — Award induced or affected by fraud; Abuse of Process — Inconsistent positions — Principle of approbation and reprobation (Para 0)
- Judgment length: The extracted material indicates a judgment with a table of contents extending to at least page 65, but the exact page count is not stated in the extraction (Para 0)
Summary
This case concerned a challenge to a corrected arbitral award and a related leave order. The plaintiff sought to set aside the award on the grounds of fraud, breach of natural justice, and public policy, all arising from a dispute over overhead cranes that had been supplied, installed, and later dismantled in the course of the parties’ commercial relationship. The court identified four issues for determination: approbation and reprobation, fraud, natural justice, and public policy. (Para 39)
The court first rejected the defendants’ argument that the plaintiff was barred by the doctrine of approbation and reprobation. Although the plaintiff’s conduct could be criticised as inconsistent in some respects, the court held that the totality of the circumstances did not show a clear election to approbate and reprobate. The plaintiff had not accepted a benefit from the very matter it sought to challenge in a way that triggered the doctrine. (Para 41) (Para 45) (Para 55)
On the merits, however, the plaintiff failed. The court held that the fraud allegation was not supported by strong and cogent evidence, and that the plaintiff had not shown deliberate concealment, causation, or the absence of a good reason for non-disclosure. The court therefore dismissed the setting-aside challenge, and the applications failed notwithstanding the rejection of the approbation/reprobation objection. (Para 59) (Para 62) (Para 77)
What Was the Commercial Dispute That Led to the Arbitration?
The dispute arose out of a contract dated 10 December 2012 under which the plaintiff was appointed as a nominated sub-contractor for the design, supply, installation, testing, and commissioning of overhead cranes for a development. The first defendant later assigned its rights and obligations under the sub-contract to itself by deed of assignment dated 22 December 2015, and on the same day issued a written notice of termination alleging numerous breaches and non-compliance by the plaintiff. (Para 7) (Para 8)
"On 10 December 2012, the plaintiff and the first defendant entered into a contract where the plaintiff was appointed as a nominated sub-contractor for the design, supply, installation, testing and commissioning of the Overhead Cranes for the Development (the “Contract”)." — Per S Mohan J, Para 7
The first defendant’s case in the arbitration was that the overhead cranes were of unsatisfactory quality under the contract and/or the Sale of Goods Act, and that it was entitled to reject them. The arbitration therefore concerned not only performance and termination issues, but also the condition and quality of the cranes themselves. That factual matrix later became central to the setting-aside application, because the plaintiff alleged that the first defendant had concealed the true condition of the cranes after dismantling. (Para 8) (Para 26)
"The first defendant claimed that the Overhead Cranes were of unsatisfactory quality under the Contract and/or the Sale of Goods Act (Cap 393, 1999 Rev Ed) (“SOGA”) and it was entitled to reject them." — Per S Mohan J, Para 8
The arbitration culminated in a final award, later corrected to address a double-counting error. The corrected award ordered payment in favour of the first defendant against the plaintiff in the principal sum of $2,110,025.99, together with interest and substantial sums for arbitration costs, legal fees, and expenses. The plaintiff then commenced the present setting-aside challenge. (Para 24) (Para 3)
"The Arbitrator eventually made one correction to the Final Award to correct a double-counting error which resulted in the principal net sum awarded being reduced to $2,110,025.99." — Per S Mohan J, Para 24
Why Did the Plaintiff Say the Award Should Be Set Aside for Fraud?
The plaintiff’s central fraud case was that the first defendant had dishonestly concealed from the arbitrator the fact that the overhead cranes had been dismembered, damaged, destroyed, or cannibalised after dismantling, with several key parts missing. The plaintiff said this was material because the actual condition of the cranes was part of the parties’ dispute, and the arbitrator had been misled as to that condition. (Para 26) (Para 6)
"The plaintiff contends that the first defendant dishonestly concealed from the Arbitrator the fact that the Overhead Cranes had, sometime before or during the Arbitration, been dismembered and/or destroyed, with several key parts missing and/or cannibalised by the first defendant for its own use." — Per S Mohan J, Para 26
The plaintiff also relied heavily on the Rule 33 application and decision, arguing that the arbitrator was not aware of any damage, destruction, or missing parts when the award was made. The plaintiff’s position was that the post-award site visit revealed a materially different state of affairs from what had been presented in the arbitration, and that this discrepancy showed fraud. (Para 70) (Para 13)
"The plaintiff relies heavily on the Rule 33 Decision as evidence that the Arbitrator was not aware of any damage/destruction to the Overhead Cranes or of any cannibalised or missing parts." — Per S Mohan J, Para 70
Even so, the court emphasised that the plaintiff still bore the legal and evidential burden of proving fraud with strong and cogent evidence. The court later held that the plaintiff’s evidence was sketchy, and that even assuming some damage and missing parts existed, the materials did not establish deliberate concealment or a causative link to the award. (Para 75) (Para 77) (Para 62)
"The legal burden of proving fraud lies on the plaintiff as the applicant and its evidential burden is to adduce strong and cogent evidence of the fraudulent conduct complained of." — Per S Mohan J, Para 77
How Did the Court Deal With the Doctrine of Approbation and Reprobation?
The defendants argued that the plaintiff should be barred from challenging the award because it had already taken tangible steps to reap the benefits of the corrected award and had also entered into a third-party contract. The court framed the issue as whether the plaintiff’s conduct amounted to an election that triggered the doctrine of approbation and reprobation. (Para 38) (Para 39)
"Finally, the defendants submit that OS 433 should also be dismissed by reason of the doctrine of approbation and reprobation, as the plaintiff has already taken tangible steps to reap the benefits of the Corrected Final Award and should not be allowed to take an inconsistent position by applying to set it aside." — Per S Mohan J, Para 38
The court set out the doctrinal foundation by noting that the doctrine applies where a person has accepted a benefit from the matter he later seeks to reprobate. The court also considered authorities on election and benefit, including the proposition that a benefit need not be cash and may include entitlement under a judgment or award. However, the court stressed that the conduct must clearly show an election. (Para 41) (Para 45)
"The foundation of the doctrine of approbation and reprobation is that the person against whom it is applied has accepted a benefit from the matter he reprobates" — Per S Mohan J, Para 41
Applying that principle, the court held that although some aspects of the plaintiff’s conduct could be criticised as inconsistent, the overall circumstances did not show that the plaintiff had clearly approbated by entering into the third-party contract and reprobated by seeking to set aside the award. The doctrine therefore did not bar the application. (Para 45) (Para 55)
"I find that while certain aspects of the plaintiff’s conduct could be criticised as inconsistent, the totality of the circumstances does not support the conclusion that the plaintiff’s conduct clearly demonstrated that it had approbated by entering into the Third Party Contract and reprobated in seeking to set aside the Corrected Final Award in OS 433." — Per S Mohan J, Para 45
What Test Did the Court Apply to the Fraud Allegation?
The court approached the fraud issue by reference to the statutory setting-aside ground in s 48(1)(a)(vi) of the Arbitration Act, which permits setting aside where the making of the award was induced or affected by fraud or corruption. The court also relied on the authorities requiring strong and cogent evidence, and on the specific test for concealment or non-disclosure. (Para 56) (Para 59)
"Under s 48(1)(a)(vi) of the AA, an award rendered in a domestic arbitration may be set aside by the court if the “making of the award was induced or affected by fraud or corruption”." — Per S Mohan J, Para 56
The court then stated the governing test for concealment or non-disclosure in fraud cases. The applicant had to prove deliberate concealment aimed at deceiving the tribunal or the other party, a causative link between the concealment and the decision in favour of the concealing party, and the absence of a good reason for the non-disclosure. This was the framework against which the plaintiff’s evidence was measured. (Para 59)
"Where the fraud alleged is concealment or non-disclosure of material information or documents, the applicant must prove that: (i) there is deliberate (as opposed to innocent or negligent) concealment aimed at deceiving the arbitral tribunal or the other party/parties to the arbitration; (ii) there is a causative link between the deliberate concealment and the decision in favour of the concealing party (ie, the concealment must have substantially impacted the making of the award); and (iii) there must not have been a good reason for the non-disclosure." — Per S Mohan J, Para 59
On the facts, the court held that the plaintiff had not produced the necessary strong and cogent evidence to establish a convincing case of fraud. The court’s reasoning was not limited to whether damage existed; it also focused on whether the alleged damage could be attributed to deliberate concealment by the first defendant and whether that concealment materially affected the award. The answer to both was no. (Para 62) (Para 75) (Para 76)
"In my judgment, the plaintiff has failed to produce the necessary strong and cogent evidence to persuade me that there is a convincing case of the Corrected Final Award being induced or affected by fraud." — Per S Mohan J, Para 62
Why Did the Court Find the Evidence of Damage and Cannibalisation Insufficient?
The court accepted, for the sake of argument, that there may have been some damage to the overhead cranes and that some parts may have gone missing. But it was not enough for the plaintiff to show that the cranes were in a worse condition at the site visit than the plaintiff expected. The real question was whether the evidence showed deliberate damage, destruction, or cannibalisation by the first defendant, and the court found that it did not. (Para 75) (Para 76)
"Even though I find that the evidence produced by the plaintiff to make good its contention that there was damage/destruction to the Overhead Cranes and/or missing parts is sketchy, I proceed on the assumption that there was damage to the Overhead Cranes and some parts went missing." — Per S Mohan J, Para 75
The court explained that, even comparing the site-visit photographs with photographs taken by the first defendant after dismantling, it was close to impossible to say with any confidence that there had been deliberate damage, destruction, or cannibalisation, or to what extent. That observation was fatal to the plaintiff’s attempt to convert a disputed factual condition into proof of fraud. (Para 76)
"It is close to impossible, simply from a comparison of the photographs taken during the Site Visit with a selection of photographs taken by the first defendant after the dismantling process, to say with any degree of confidence that there has been deliberate damage, destruction or cannibalisation of the Overhead Cranes, or to what extent." — Per S Mohan J, Para 76
The court therefore treated the plaintiff’s evidence as insufficiently probative of dishonesty. The judgment makes clear that suspicion, inference, or post hoc dissatisfaction with the state of the cranes could not substitute for the strong and cogent proof required to establish fraud in a setting-aside application. (Para 62) (Para 77)
"The plaintiff relies on three grounds to set aside the Corrected Final Award. Firstly, the Corrected Final Award is induced or affected by fraud because the first defendant dishonestly concealed and/or gave false evidence to the Arbitrator regarding the alleged actual condition of the Overhead Cranes, which was the subject of the parties’ dispute." — Per S Mohan J, Para 6
Did the Plaintiff Show That Any Alleged Concealment Actually Affected the Award?
No. The court’s fraud analysis required not only proof of deliberate concealment, but also proof that the concealment substantially impacted the making of the award. The plaintiff did not satisfy that causation requirement. The court’s reasoning was that the evidence did not show a convincing chain from the alleged concealment to the dispositive findings in the award. (Para 59) (Para 62)
The court’s treatment of the Rule 33 materials was important here. Although the plaintiff relied on the Rule 33 decision to suggest that the arbitrator was unaware of the alleged damage or missing parts, the court did not accept that this alone established causation. The court was not persuaded that the arbitrator’s decision turned on a concealed factual premise of the kind alleged by the plaintiff. (Para 70) (Para 62)
"The plaintiff relies heavily on the Rule 33 Decision as evidence that the Arbitrator was not aware of any damage/destruction to the Overhead Cranes or of any cannibalised or missing parts." — Per S Mohan J, Para 70
Accordingly, even if the plaintiff could point to some post-award evidence of deterioration or missing components, that did not demonstrate that the award was induced or affected by fraud. The court therefore dismissed the fraud ground as unproven. (Para 62) (Para 77)
"The legal burden of proving fraud lies on the plaintiff as the applicant and its evidential burden is to adduce strong and cogent evidence of the fraudulent conduct complained of." — Per S Mohan J, Para 77
What Did the Court Say About Natural Justice and Public Policy?
The court identified breach of natural justice and public policy as separate grounds raised by the plaintiff, but the extracted material does not provide a detailed merits analysis of those grounds beyond the court’s overall conclusion that the applications failed. The court’s summary of the issues confirms that these were live questions before it. (Para 39)
"Based on the parties’ submissions, the main issues that arise for my consideration are as follows: (a) whether the doctrine of approbation and reprobation precludes the plaintiff from setting aside the Corrected Final Award; (b) whether the Corrected Final Award is induced or affected by fraud; (c) whether there is a breach of natural justice in the making of the Corrected Final Award; and (d) whether the Corrected Final Award is contrary to public policy." — Per S Mohan J, Para 39
What can be said from the extraction is limited: the court did not find the plaintiff’s overall challenge persuasive, and the applications were dismissed. Because the extraction does not provide the court’s detailed reasoning on natural justice or public policy, it would be unsafe to invent a fuller analysis. The only reliable statement is that those grounds were not made out on the materials before the court. (Para 39) (Para 55) (Para 62)
The judgment therefore stands primarily as a fraud-and-election decision in the arbitration setting-aside context. The extracted material does not support a more granular account of any separate natural justice or public policy defect, and those issues should be treated as having been rejected as part of the overall dismissal. (Para 39) (Para 62)
How Did the Court Treat the Plaintiff’s Reliance on the Site Visit and Photographs?
The plaintiff’s factual narrative depended heavily on the site visit, during which it said it discovered for the first time that the overhead cranes had not merely been dismantled but had been damaged, destroyed, or cannibalised. The court accepted that this was the plaintiff’s asserted discovery, but it did not accept that the discovery proved fraud. (Para 13) (Para 75)
"According to the plaintiff, it was only during the Site Visit that it discovered for the first time that the Overhead Cranes had not just been dismantled as previously asserted by the plaintiff but had been damaged and/or destroyed, with several key parts missing and/or cannibalised by the first defendant." — Per S Mohan J, Para 13
The court’s analysis of the photographs was cautious and evidentially grounded. It held that a comparison between the site-visit photographs and a selection of photographs taken after dismantling could not, with any degree of confidence, establish deliberate damage or cannibalisation. That meant the photographic record was not enough to carry the plaintiff’s burden. (Para 76) (Para 77)
"It is close to impossible, simply from a comparison of the photographs taken during the Site Visit with a selection of photographs taken by the first defendant after the dismantling process, to say with any degree of confidence that there has been deliberate damage, destruction or cannibalisation of the Overhead Cranes, or to what extent." — Per S Mohan J, Para 76
In practical terms, the court treated the site visit as a post-award evidential development, not as proof that the award itself had been procured by fraud. That distinction was decisive. The plaintiff’s discovery may have prompted suspicion, but suspicion was not enough to satisfy the legal threshold for setting aside. (Para 62) (Para 75) (Para 77)
Why Did the Court Mention the Third-Party Contract in the Appropriation Analysis?
The defendants argued that the plaintiff had taken tangible steps to reap the benefits of the corrected award and had also entered into a third-party contract, making its challenge inconsistent. The court considered whether that conduct amounted to acceptance of a benefit from the matter later reprobated. (Para 38) (Para 41)
"The foundation of the doctrine of approbation and reprobation is that the person against whom it is applied has accepted a benefit from the matter he reprobates" — Per S Mohan J, Para 41
The court ultimately held that the plaintiff’s conduct did not clearly demonstrate approbation and reprobation. The reference to the third-party contract mattered because it was part of the defendants’ attempt to show that the plaintiff had acted inconsistently in a legally significant way. But the court found that the totality of the circumstances did not support that conclusion. (Para 45) (Para 55)
"I find that while certain aspects of the plaintiff’s conduct could be criticised as inconsistent, the totality of the circumstances does not support the conclusion that the plaintiff’s conduct clearly demonstrated that it had approbated by entering into the Third Party Contract and reprobated in seeking to set aside the Corrected Final Award in OS 433." — Per S Mohan J, Para 45
So, while the third-party contract was relevant to the defendants’ abuse-of-process argument, it did not ultimately defeat the setting-aside application. The court’s rejection of the doctrine meant the plaintiff was not shut out on that procedural ground, even though it still lost on the merits. (Para 45) (Para 55)
What Was the Final Outcome of the Setting-Aside Applications?
The final outcome was dismissal. The court held that the doctrine of approbation and reprobation did not bar the plaintiff, but the plaintiff failed to prove fraud, and the extracted material indicates that the remaining grounds were also not established. The result was that the applications to set aside the corrected final award and the related leave order were dismissed. (Para 55) (Para 62) (Para 39)
"I hold that the doctrine of approbation and reprobation does not apply on the facts of this case to bar the plaintiff from seeking to set aside the Final Corrected Award in OS 433 or the Leave Order. Accordingly, I turn now to address the substantive merits of the plaintiff’s challenge against the Corrected Final Award." — Per S Mohan J, Para 55
The court’s dismissal rested on the plaintiff’s failure to discharge the burden of proving fraud with strong and cogent evidence. The judgment is therefore a reminder that setting aside an arbitral award is not an opportunity for a disappointed party to relitigate the merits or to infer fraud from an adverse factual outcome. (Para 62) (Para 77)
"In my judgment, the plaintiff has failed to produce the necessary strong and cogent evidence to persuade me that there is a convincing case of the Corrected Final Award being induced or affected by fraud." — Per S Mohan J, Para 62
That conclusion also explains why the court did not need to grant any suspension under s 48(3) of the Arbitration Act. The plaintiff had suggested that if there were outstanding matters the arbitrator could determine, the court might suspend proceedings and allow the arbitrator to resume the arbitration, but the extracted material does not show that this course was taken. The applications were simply dismissed. (Para 31) (Para 55)
Why Does This Case Matter?
This case matters because it reinforces the high threshold for setting aside an arbitral award on the basis of fraud. The court made clear that a party alleging concealment must produce strong and cogent evidence of deliberate deception, causation, and the absence of a good reason for non-disclosure. Mere suspicion, post-award discovery, or an arguable discrepancy in the factual record will not suffice. (Para 59) (Para 62) (Para 77)
It also clarifies the limits of the doctrine of approbation and reprobation in the arbitration context. Even where a party’s conduct may appear inconsistent, the doctrine will not apply unless the party has clearly accepted a benefit from the very matter it later challenges. The court’s analysis shows that the doctrine is not a broad fairness-based bar, but a specific election principle requiring a sufficiently unequivocal choice. (Para 41) (Para 45)
For practitioners, the case is a useful reminder that setting-aside applications must be built on evidence, not inference. It also shows the importance of distinguishing between dissatisfaction with the factual state of property after an award and proof that the award itself was procured by fraud. The court’s approach preserves the finality of arbitral awards while leaving room for genuine fraud cases supported by compelling proof. (Para 62) (Para 76)
Cases Referred To
| Case Name | Citation | How Used | Key Proposition |
|---|---|---|---|
| BAZ v BBA and others and other matters | [2020] 5 SLR 266 | Cited in the introduction to the approbation/reprobation discussion | A party should not get a “second bite of the cherry” in setting aside (as reflected in the extraction) |
| BWG v BWF | [2020] 1 SLR 1296 | Main authority on approbation and reprobation | The doctrine requires acceptance of a benefit from the matter reprobated; it can extend to inconsistent positions in different proceedings |
| Evans v Bartlam | [1937] AC 473 | Cited in the quoted authorities on benefit | A benefit can arise from a judgment; foundation of the doctrine |
| Treasure Valley Group Ltd v Saputra Teddy and another (Ultramarine Holdings Ltd, Intervener) | [2006] 1 SLR(R) 358 | Cited in the quoted authorities on benefit | A person who accepts a benefit under an instrument must adopt it in entirety |
| Aries Telecoms (M) Bhd v ViewQwest Pte Ltd | [2018] 1 SLR 108 | Cited on election | Prior position must be reasonably clear to be effective |
| R Durtnell & Sons Limited v Kaduna Limited | [2003] EWHC 517 (TCC) | Discussed on “benefit” | Entitlement to possession can be a benefit; benefit need not be cash |
| AMEC Group Ltd v Thames Water Utilities Ltd | [2010] EWHC 419 (TCC) | Discussed critically | Doubt expressed about whether a liability against a losing party is a “benefit” |
| Goldbell Engineering Ltd v Etiqa Insurance Pte Ltd (Range Construction Pte Ltd, third party) and another matter | [2022] SGHC 1 | Cited on benefit | Reiterated that a judgment or award can be a benefit |
| BNX v BOE | [2018] 2 SLR 215 | Cited on fraud threshold | Dishonesty is the cornerstone; inadvertent errors are insufficient |
| Bloomberry Resorts and Hotels Inc and another v Global Gaming Philippines LLC and another | [2021] 3 SLR 725 | Main fraud authority | Strong and cogent evidence is required; procedural fraud principles were set out |
| BVU v BVX | [2019] SGHC 69 | Cited on fraud threshold | A convincing case of fraud must be shown |
| Swiss Singapore Overseas Enterprises Pte Ltd v Exim Rajathi India Pvt Ltd | [2010] 1 SLR 573 | Cited on procedural fraud | Non-disclosure must be deliberate and aimed at deceiving the tribunal |
| Twinsectra | Not stated in the extraction | Cited in the quoted authorities on benefit | A benefit can exist notwithstanding non-satisfaction of judgment |
| PW & Co v Milton Gate Investments Ltd | [2004] Ch 142 | Cited in the quoted authorities on benefit | A judgment can be a benefit |
| Dexters Ltd v Hill Crest Oil Co (Bradford) Ltd | [1926] 1 KB 348 | Cited in the quoted authorities on benefit | An arbitral award can be a benefit |
| European Grain and Shipping Ltd v Johnston | [1982] 3 All ER 989 | Cited in the quoted authorities on benefit | An arbitral award can be a benefit |
Legislation Referenced
- Arbitration Act (Cap 10, 2002 Rev Ed), s 48(1) (Para 3) (Para 56)
- Arbitration Act (Cap 10, 2002 Rev Ed), s 48(1)(a)(vi) (Para 56)
- Arbitration Act (Cap 10, 2002 Rev Ed), s 48(3) (Para 31)
- International Arbitration Act 1994 (2020 Rev Ed), s 24(a) (Para 20)
- Sale of Goods Act (Cap 393, 1999 Rev Ed) (Para 8)
- SIAC Rules, r 33 (Para 31) (Para 70)
Source Documents
This article analyses [2022] SGHC 17 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.