Case Details
- Citation: [2025] SGCA 12
- Court: Court of Appeal of the Republic of Singapore
- Decision Date: 17 March 2025
- Coram: Steven Chong JCA
- Case Number: Civil Appeal No 48 of 2024 (Summons No 2 of 2025)
- Hearing Date(s): 19 July 2024 (Substantive hearing below)
- Appellants / Applicants: Vietnam Oil and Gas Group
- Respondent: Joint Stock Company (Power Machines – ZTL, LMZ, Electrosila Energomachexport)
- Counsel for Appellant: Colin Ong Yee Cheng KC, Koh Choon Guan Daniel and Wong Hui Yi Genevieve (Eldan Law LLP)
- Counsel for Respondent: Edmund Jerome Kronenburg, Stephanie Sim Wei Min and Chan Yu Jie (Braddell Brothers LLP)
- Practice Areas: Arbitration; Civil Procedure; Appeals; Evidence
Summary
The decision in Vietnam Oil and Gas Group v Joint Stock Company (Power Machines – ZTL, LMZ, Electrosila Energomachexport) [2025] SGCA 12 addresses a critical procedural intersection between the finality of the court record and the statutory requirements for remitting arbitral awards under the International Arbitration Act 1994. The Court of Appeal was tasked with determining whether an appellant could adduce fresh evidence—specifically, its own solicitors' notes of a hearing—to impeach the accuracy of the High Court Judge’s official notes of evidence. The core of the dispute lay in whether the Respondent had actually requested a remission of the arbitral award during the oral arguments below, a prerequisite for the court’s power to remit under Article 34(4) of the UNCITRAL Model Law.
The Court of Appeal dismissed the application to adduce further evidence, reinforcing the long-standing principle that the judge’s notes constitute the official and definitive record of court proceedings. Steven Chong JCA, sitting as a single judge of the Court of Appeal, held that any challenge to the accuracy of the official record must be ventilated before the judge who presided over the hearing at the earliest possible opportunity. By failing to seek a correction or clarification from the High Court Judge after the issuance of the Grounds of Decision, the Applicant could not satisfy the "reasonable diligence" limb of the Ladd v Marshall test. The court emphasized that allowing parties to produce private notes to contradict the official record on appeal would undermine the integrity of the judicial process and invite endless satellite litigation over the contents of oral submissions.
Doctrinally, the judgment clarifies the application of the Supreme Court of Judicature Act 1969 regarding further evidence on appeal. It distinguishes between evidence relating to the substantive merits of a case and evidence relating to the procedural conduct of the hearing itself. The court reaffirmed that the strict criteria in Ladd v Marshall apply to any attempt to introduce evidence of what transpired during a hearing if that evidence was available (or could have been created) at the time of the decision. This decision serves as a stern reminder to practitioners to maintain meticulous records and to act immediately if they believe a judge has misapprehended or misrecorded a submission.
Ultimately, the ruling preserves the high threshold for challenging the official record of the court. It confirms that while the court’s power to remit an award under Article 34(4) of the Model Law is contingent upon a party’s request, the existence of such a request is a matter of fact to be determined by the official record. In the absence of a timely challenge to that record below, the appellate court will treat the judge’s notes as conclusive. This maintains the necessary finality in both arbitration-related litigation and general civil procedure in Singapore.
Timeline of Events
- 19 July 2024: The substantive hearing of HC/OA 346/2024 (“OA 346”) and HC/SUM 988/2024 (“SUM 988”) takes place before the High Court Judge. The parties argue the merits of setting aside an arbitral award.
- 23 July 2024: The High Court Judge delivers an oral judgment. He finds that grounds exist to set aside the award but decides to remit the matter to the arbitral tribunal instead of setting it aside immediately.
- 31 July 2024: A further hearing is held to determine the specific terms of the remission order.
- 24 September 2024: The High Court Judge issues the written Grounds of Decision, cited as [2024] SGHC 244.
- 30 December 2024: The Applicant files the present application (SUM 2/2025) seeking leave to adduce further evidence for the purposes of the appeal in CA 48/2024.
- 7 February 2025: The Applicant files its skeletal submissions in support of the application to adduce further evidence.
- 17 March 2025: The Court of Appeal delivers its judgment dismissing the application to adduce further evidence and fixing costs against the Applicant.
What Were the Facts of This Case?
The dispute originated from an application by the Vietnam Oil and Gas Group (the "Applicant") to set aside an arbitral award. This application, filed as HC/OA 346/2024, was heard alongside HC/SUM 988/2024, which concerned the enforcement of the same award by the Respondent, Joint Stock Company (Power Machines – ZTL, LMZ, Electrosila Energomachexport). The underlying arbitration involved complex commercial issues, and the Applicant sought to set aside the award on several grounds, including an alleged breach of natural justice by the tribunal.
During the substantive hearing on 19 July 2024, the High Court Judge heard extensive oral arguments from both sides. On 23 July 2024, the Judge delivered his decision. While he was satisfied that the Applicant had established a basis for setting aside the award, he exercised his discretion to remit the award to the tribunal for further consideration. This power of remission is found in Article 34(4) of the UNCITRAL Model Law, which is given the force of law in Singapore by Section 3(1) of the International Arbitration Act 1994. Crucially, Article 34(4) provides that the court may remit the award "where appropriate and so requested by a party."
The Applicant subsequently appealed the Judge's decision to remit the award (CA 48/2024). A central plank of the Applicant's appeal was the contention that the Judge lacked the jurisdiction to order remission because neither party had formally requested it. However, the High Court Judge’s official notes of the 19 July 2024 hearing recorded a specific submission by the Respondent’s counsel, Mr. Jerome Kronenburg, where he purportedly stated that if the Judge were inclined to set aside the award, the Respondent would request a remission instead. The Judge’s notes recorded the following: "If Court is with [the Applicant] on the [setting aside] point, [the Respondent] asks for remission."
The Applicant vehemently denied that any such request was made. To support this denial, the Applicant filed SUM 2/2025, seeking leave to adduce its own solicitors' notes of the 19 July 2024 and 23 July 2024 hearings. These notes, taken by the Applicant’s legal team from Eldan Law LLP, did not contain any record of the Respondent’s counsel making a request for remission. The Applicant argued that the Judge’s notes were factually erroneous and that the solicitors' notes were necessary to "correct the record" for the appellate court. The Applicant further contended that the Respondent had only raised the issue of remission for the first time during the 31 July 2024 hearing, which was after the Judge had already indicated his intention to remit the award on 23 July 2024.
The Respondent opposed the application, maintaining that the request for remission had indeed been made during the 19 July 2024 hearing, as reflected in the Judge's notes. The Respondent argued that the Applicant was attempting to circumvent the finality of the official court record and that the proposed evidence failed to meet the stringent requirements for adducing fresh evidence on appeal. The Respondent also pointed out that the Applicant had failed to raise this alleged discrepancy with the High Court Judge at any point between the delivery of the oral judgment in July 2024 and the filing of the summons in December 2024.
What Were the Key Legal Issues?
The application raised three primary legal issues concerning appellate procedure and the interpretation of the Model Law:
- The Admissibility of Further Evidence on Appeal: Whether the Applicant’s solicitors' notes constituted "further evidence" within the meaning of Sections 59(4) and 59(5) of the Supreme Court of Judicature Act 1969, and whether the Applicant satisfied the three-pronged test in Ladd v Marshall [1954] 1 WLR 1489.
- The Sanctity of the Official Record: Whether an appellate court can or should entertain a challenge to the official notes of evidence recorded by a trial judge, and what the proper procedure is for a party seeking to correct an alleged error in those notes.
- Jurisdiction under Article 34(4) of the Model Law: Whether the requirement that a party "so requested" remission necessitates a formal written application, or whether an oral request recorded in the judge's notes is sufficient to trigger the court's power to remit.
How Did the Court Analyse the Issues?
The Court of Appeal’s analysis began with the statutory framework for adducing further evidence. Steven Chong JCA noted that the power of the Court of Appeal to receive further evidence is governed by Section 59 of the Supreme Court of Judicature Act 1969. He distinguished between Section 59(4), which applies to evidence relating to matters occurring before the date of the decision, and Section 59(5), which applies to matters occurring after that date. Citing [2023] SGCA 29, the court affirmed that for matters occurring before the decision, the "stringent" Ladd v Marshall test applies. For matters occurring after, a more flexible approach is adopted, though the court still seeks to prevent an abuse of process.
The court determined that the solicitors' notes related to the hearings on 19 and 23 July 2024, both of which occurred before the Judge’s final decision. Therefore, the Ladd v Marshall test was the applicable standard. The court then systematically applied the three limbs of the test:
"The three conditions are: (i) first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (ii) second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (iii) third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible." (at [7])
Regarding the first limb (reasonable diligence), the court found that the Applicant failed significantly. The Applicant argued that it only realized the Judge’s notes were "wrong" when it received the Grounds of Decision in September 2024. The court rejected this, noting that the Applicant’s solicitors were present at the hearing and took the very notes they now sought to adduce. They knew exactly what was said (or not said) in court. If the Judge’s oral decision on 23 July 2024 was based on a request for remission that the Applicant believed was never made, the Applicant should have raised the issue immediately. The court held that "reasonable diligence" required the Applicant to seek a correction from the Judge below rather than waiting to file an application in the Court of Appeal months later.
On the second limb (influence on the result), the court acknowledged that if the Judge had indeed ordered remission without a request, it might affect the jurisdiction of the order under Article 34(4) of the Model Law. However, the court emphasized that the "evidence" being offered was not evidence of a fact in the underlying dispute, but evidence of a procedural event. This led to the court’s deeper analysis of the official record.
The court relied heavily on the principle in Chan Kok Kiang v Tan Swan Cheng [1968–1970] SLR(R) 707. In that case, the court held that the judge’s notes are the only official record of what happened at a trial. Steven Chong JCA stated:
"An appellate court should generally not entertain a challenge to the official record of the hearing below unless the issue has been ventilated before the court or judge below." (at [31])
The court reasoned that allowing parties to use their own notes to contradict the judge’s notes would create "intolerable" uncertainty. A judge’s notes are taken in the course of judicial duty and are presumed to be accurate. If a party disputes them, the proper course is to write to the judge to request a clarification or correction. This allows the judge to consult his or her own memory and any other available records (such as the notes of other counsel or court staff). By bypassing this step, the Applicant was asking the Court of Appeal to adjudicate a "he-said-she-said" dispute between the Judge’s notes and a party’s private notes, which is procedurally improper.
The court also addressed the Applicant’s reliance on [2021] SGHC 110. In that case, a party was allowed to challenge an official transcript. However, the court distinguished North Star on the basis that the challenge there was raised *to the trial judge* during the proceedings, not for the first time on appeal. This reinforced the court's view that the forum for correcting the record is the court of first instance.
Finally, regarding the third limb (credibility), the court noted that while solicitors' notes are generally credible, they are inherently one-sided and may be incomplete. They cannot carry the same weight as the neutral record maintained by the presiding judge. The court concluded that the Applicant’s attempt to adduce the notes was an attempt to "impeach the record" via the back door of a Ladd v Marshall application, which the court would not permit.
What Was the Outcome?
The Court of Appeal dismissed the Applicant’s application in its entirety. The court held that the Applicant had failed to satisfy the requirements for adducing further evidence on appeal and had failed to follow the correct procedure for challenging the official record of the High Court.
The operative conclusion of the court was stated as follows:
"For the foregoing reasons, I dismiss this application." (at [48])
In terms of costs, the court followed the principle that costs should follow the event. The Respondent had successfully resisted the application and was entitled to its costs. The court fixed the costs as follows:
"I fix the costs of the application in the sum of $12,000 (all-in), payable by the applicant to the respondent." (at [49])
The dismissal of the application means that for the purposes of the substantive appeal in CA 48/2024, the Court of Appeal will rely solely on the existing record, including the High Court Judge’s notes of evidence which record the Respondent’s request for remission. The Applicant will not be permitted to rely on its solicitors' notes to argue that no such request was made. The substantive appeal regarding whether the Judge had the jurisdiction to remit the award will proceed on the basis that the request recorded in the Judge's notes was indeed made.
Why Does This Case Matter?
This judgment is of significant importance to practitioners for several reasons, primarily concerning the finality of court records and the conduct of arbitration-related litigation in Singapore.
1. Reaffirmation of the Sanctity of the Judge’s Notes
The decision reaffirms the "gold standard" status of the judge’s notes of evidence. In an era where digital transcripts and recordings are increasingly common, this case confirms that the judge’s personal record remains the definitive account of oral proceedings. The court’s refusal to allow private solicitors' notes to impeach this record protects the judicial process from "satellite litigation" where parties might otherwise pick apart every word recorded by a judge. It places a high premium on the judge’s role as the neutral arbiter of the proceedings.
2. Procedural Clarity on Correcting the Record
The judgment provides a clear roadmap for practitioners who believe an error has been made in the official record. The court explicitly states that such challenges must be raised "at the earliest possible opportunity" to the judge who made the record. This usually means immediately after the hearing or upon receipt of the Grounds of Decision. By clarifying that the Court of Appeal is not the appropriate forum for a first-instance challenge to the record, the decision prevents procedural ambush on appeal and ensures that the trial judge has the opportunity to address any perceived inaccuracies while the matter is fresh.
3. Interpretation of Article 34(4) of the Model Law
While the application was procedural, it has significant implications for the International Arbitration Act 1994. The court’s analysis suggests that the "request" required for remission under Article 34(4) does not need to be a formal, written application or a standalone summons. An oral request made during a setting-aside hearing, if recorded in the judge’s notes, is sufficient to clothe the court with the jurisdiction to remit. This is a pragmatic approach that recognizes the fluid nature of oral advocacy in arbitration disputes.
4. Strict Application of Ladd v Marshall to Procedural Evidence
The case is a reminder that the Ladd v Marshall test is not limited to "new facts" about the merits of a dispute. It applies equally to evidence about what happened during the trial itself. The court’s finding that solicitors' notes could have been "obtained with reasonable diligence" (because they were created by the party seeking to adduce them) sets a very high bar for using such notes on appeal. Practitioners cannot sit on their own records and then attempt to use them as "fresh evidence" to correct a perceived judicial error later.
5. Doctrinal Lineage
The decision bridges the gap between mid-20th-century precedents like Chan Kok Kiang and modern appellate practice. It demonstrates that despite changes in court technology, the underlying principles of judicial finality and the hierarchy of evidence remain constant. It also aligns Singapore’s position with other common law jurisdictions that prioritize the official court record over partisan accounts of proceedings.
Practice Pointers
- Meticulous Note-Taking: Solicitors must ensure that their own notes of hearings are as accurate and comprehensive as possible, as these will be the only basis for identifying discrepancies in the official record.
- Immediate Review of Decisions: Upon receiving an oral judgment or written Grounds of Decision, counsel should immediately cross-reference the judge’s findings and recorded submissions against their own notes.
- Prompt Action for Corrections: If a discrepancy is found in the judge's notes or the official transcript, counsel must write to the court immediately to seek a clarification or correction. Waiting until the appeal stage is likely to be fatal to any challenge.
- Article 34(4) Strategy: When representing a respondent in a setting-aside application, counsel should consider making a contingent request for remission on the record during oral submissions, even if a formal application has not been filed.
- Ladd v Marshall Awareness: Be aware that the "reasonable diligence" limb is interpreted strictly. If the evidence was in your possession or could have been raised earlier, the Court of Appeal is highly unlikely to admit it.
- Costs Risks: Unsuccessful applications to adduce further evidence carry significant costs consequences. In this case, the Applicant was ordered to pay $12,000 for a single summons, reflecting the court's disapproval of procedurally improper challenges.
Subsequent Treatment
As this is a recent 2025 decision of the Court of Appeal, there is no recorded subsequent treatment in later judgments. However, the decision explicitly applies the long-standing authority of Chan Kok Kiang v Tan Swan Cheng [1968–1970] SLR(R) 707 and follows the modern application of the Ladd v Marshall test as refined in [2023] SGCA 29. It is expected to be cited frequently in future civil appeals where parties attempt to dispute the accuracy of the record below.
Legislation Referenced
- International Arbitration Act 1994 (2020 Rev Ed), Section 3(1) and First Schedule (UNCITRAL Model Law, Article 34(4))
- Supreme Court of Judicature Act 1969 (2020 Rev Ed), Sections 59(4) and 59(5)
Cases Cited
- Applied:
- Chan Kok Kiang v Tan Swan Cheng and another [1968–1970] SLR(R) 707
- Considered:
- Ladd v Marshall [1954] 1 WLR 1489
- BNX v BOE and another appeal [2018] 2 SLR 215
- Referred to: