10 Pursuant to the express terms of the Rental Agreements, the 1st defendant agreed inter alia as follows:

…

5.1 The Vehicle is the property of the Owner and the Hirer shall have no rights to the Vehicle other than as a bailee and shall not do or permit or cause to be done anything whereby the rights of the Owner are or may be prejudiced or affected.

5.2 If the Owner's rights or title in the Vehicle are infringed, jeopardised or prejudiced as a consequence of any act or omission of the Hirer or the Authorised Driver or the Additional Driver approved by the Owner, then without prejudice to the generality of Clause 20, the Hirer shall indemnify the Owner against all costs, damages, expenses or loss resulting from or in connection with such act or omission before as well as after judgment, until full payment of the same.

…

17.2 Without prejudice to Clause 16.1, the Owner may immediately terminate the Agreement without notice and take repossession of the Vehicle upon any of the following events:

…

17.2.15 the Hirer shall be in breach of any term or condition of this Agreement; …

…

18.1 Upon the early termination of the hiring as provided in Clause 17 above or by the Hirer for any reason whatsoever, the Hirer shall:

18.1.1 immediately return the Vehicle to the Owner in accordance with Clause 19; and 18.1.2 immediately pay the Owner:

…

18.1.2.3 Premature Termination Damages comprising the liquidated damages being the sum equivalent to the rental payable for the unexpired duration of the Rental Period and Disposition Fees without any rebates whatsoever.

…

24 It also bears emphasising that, in the absence of any relevant vitiating factors, it is incumbent that parties observe, scrupulously, the precise terms of the contract. … Sanctity of contract is vital to certainty and predictability in commercial transactions. If a party (here, the plaintiff) were allowed to unravel the contract by ignoring a term it had entered into voluntarily, this would undermine the very concept of a contract itself. Parties entering into contracts necessarily take business risks. Business losses are not unexpected. All these are hard facts of commercial life. The law does not exist to shield contracting parties from miscalculations or even commercial folly. That is why vitiating factors in contract law are applied strictly as the law attempts to balance the need for commercial certainty on the one hand and fairness to individual parties in egregious situations on the other.

…

26 Finally, it is important to stress that notwithstanding many academic critiques to the effect that commercial certainty and predictability are chimerical, it cannot be gainsaid that the perception of their importance is deeply entrenched within the commercial legal landscape in general and in the individual psyches of commercial parties (and even non-commercial parties, for that matter) in particular. …

[emphasis in original]

132 To summarise, the approach adopted in Singapore to the admissibility of extrinsic evidence to affect written contracts is a pragmatic and principled one. The main features of this approach are as follows:

(a) A court should take into account the essence and attributes of the document being examined. The court’s treatment of extrinsic evidence at various stages of the analytical process may differ depending on the nature of the document. In general, the court ought to be more reluctant to allow extrinsic evidence to affect standard form contracts and commercial documents (see [110] above).

(b) If the court is satisfied that the parties intended to embody their entire agreement in a written contract, no extrinsic evidence is admissible to contradict, vary, add to, or subtract from its terms (see ss 93–94 of the Evidence Act). In determining whether the parties so intended, our courts may look at extrinsic evidence and apply the normal objective test, subject to a rebuttable presumption that a contract which is complete on its face was intended to contain all the terms of the parties’ agreement (see [40] above). In other words, where a contract is complete on its face, the language of the contract constitutes prima facie proof of the parties’ intentions.

(c) Extrinsic evidence is admissible under proviso (f) to s 94 to aid in the interpretation of the written words. Our courts now adopt, via this proviso, the modern contextual approach to interpretation, in line with the developments in England in this area of the law to date. Crucially, ambiguity is not a prerequisite for the admissibility of extrinsic evidence under proviso (f) to s 94 (see [114]–[120] above).

(d) The extrinsic evidence in question is admissible so long as it is relevant, reasonably available to all the contracting parties and relates to a clear or obvious context (see [125] and [128]–[129] above). However, the principle of objectively ascertaining contractual intention(s) remains paramount. Thus, the extrinsic evidence must always go towards proof of what the parties, from an objective viewpoint, ultimately agreed upon. Further, where extrinsic evidence in the form of prior negotiations and subsequent conduct is concerned, we find the views expressed in McMeel’s article ([62] supra) and Nicholls’ article ([62] supra) persuasive. For this reason, there should be no absolute or rigid prohibition against evidence of previous negotiations or subsequent conduct, although, in the normal case, such evidence is likely to be inadmissible for non-compliance with the requirements set out at [125] and [128]–[129] above. (We should add that the relevance of subsequent conduct remains a controversial and evolving topic that will require more extensive scrutiny by this court at a more appropriate juncture.) Declarations of subjective intent remain inadmissible except for the purpose of giving meaning to terms which have been determined to be latently ambiguous (see [50] above; see also sub-para (e) below).

(e) In some cases, the extrinsic evidence in question leads to possible alternative interpretations of the written words (ie, the court determines that latent ambiguity exists). A court may give effect to these alternative interpretations, always bearing in mind s 94 of the Evidence Act. In arriving at the ultimate interpretation of the words to be construed, the court may take into account subjective declarations of intent (see [50] above). Furthermore, the normal canons of interpretation apply in conjunction with the relevant provisions of the Evidence Act, ie, ss 95–100 (see [75]–[80] and [131] above).

(f) A court should always be careful to ensure that extrinsic evidence is used to explain and illuminate the written words, and not to contradict or vary them. Where the court concludes that the parties have used the wrong words, rectification may be a more appropriate remedy (see [123] above).

37 As provided for in s 59(4) of the SCJA 1969 read with O 19 r 7(7) of the ROC 2021, should the Further Evidence not relate to matters occurring after the date of the decision appealed against, then an applicant must show special grounds warranting the admission of further evidence in an appeal by satisfying the three cumulative conditions in the Ladd v Marshall test (see BNX v BOE at [74]; Anan Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2019] 2 SLR 341 at [21]), ie, that:

(a) the evidence could not have been obtained with reasonable diligence for use in the lower court;

(b) the evidence would probably have an important influence on the result of the case, although it need not be decisive; and

(c) the evidence must be apparently credible, although it need not be incontrovertible.

[emphasis in original]

However, if the Further Evidence relates to matters occurring after the date of the decision appealed against, s 59(5) of the SCJA 1969 provides that the evidence “may be given to the Court of Appeal without permission” and O 19 r 7 of the ROC 2021 provides that it is exempt from the requirement that further evidence may not be given except on special grounds. The court should hence apply the Ladd v Marshall Modified Test (see BNX v BOE at [97] to [99]) which entails the following:

(a) to ascertain what the relevant matters are, of which evidence is sought to be given, and ensure that these are matters that occurred after the trial or hearing below;

(b) to satisfy itself that the evidence of these matters is at least potentially material to the issues in the appeal; and

(c) to satisfy itself that the material at least appears to be credible.

…

35 It is apparent from the foregoing that whether or not an appeal is against a “judgment after a trial or hearing of any cause or matter upon the merits” does not necessarily determine the applicability or otherwise of Ladd v Marshall. Rather, consistent with the summary in Park Regis which this court endorsed in ARW ([21] supra) at [100], the cases should be analysed as lying on a spectrum. On one end of the spectrum, where it is clear that the appeal is against a judgment after a trial or a hearing having the full characteristics of a trial (ie, which involves extensive taking of evidence and particularly oral evidence), then it is clear that Ladd v Marshall should be generally applied in its full rigour. On the other end of the spectrum, where the hearing was not upon the merits at all, such as in the case of interlocutory appeals, then Ladd v Marshall serves as a guideline which the court is entitled but not obliged to refer to in the exercise of its unfettered discretion. For all other cases falling in the middle of the spectrum, which would include appeals against a judgment after a hearing of the merits but which did not bear the characteristics of a trial, then it is for the court to determine the extent to which the first condition of Ladd v Marshall ie, criterion of non-availability should be applied strictly, having regard to the nature of the proceedings below. In this regard, relevant (non-exhaustive) factors would include: (a) the extent to which evidence, both documentary and oral, was adduced for the purposes of the hearing; (b) the extent to which parties had the opportunities to revisit and refine their cases before the hearing; and (c) the finality of the proceedings in disposing of the dispute between the parties.

10 It would be expedient if we first deal with the question of whether Ladd v Marshall applies to an appeal from the Registrar’s decision. It is settled law that when a judge in chambers hears an appeal from a decision of the Registrar, the judge is not exercising an appellate jurisdiction but a confirmatory jurisdiction. In such an appeal, there is a rehearing before the judge and he is entitled to exercise an unfettered discretion of his own. In Herbs and Spices Trading Post Pte Ltd v Deo Silver (Pte) Ltd [1990] 2 SLR(R) 685 (“Herbs and Spices”), Chan Sek Keong J (as he then was) said at [12]:

… In such appeals, the judge-in-chambers is not exercising ‘appellate’ jurisdiction in the same sense when [he] hears appeals from the District Court. This view is consistent with the rule that an appeal from the Registrar of the High Court to the judge-in-chambers is by way of an actual rehearing of the application and the judge treats the matter afresh as though it came before him the first time, and the practice of allowing fresh affidavit evidence in such appeals.

24 Having said that, and for the reasons set out in [20], we are far from suggesting that a party should be free to bring in fresh evidence as he pleases. The discretion rests with the judge. Reasonable conditions must be set. The first condition under Ladd v Marshall is a very stringent one – it must be shown that the new evidence could not have been obtained with reasonable diligence at the trial. Any sort of judgmental error would not be sufficient to meet this condition. However, for the reasons given in the previous paragraph, the imposition of the same stringent requirement on an appeal from an assessment by the Registrar to the judge would not be appropriate. The judge should be given a wider discretion in the matter. But this is not to say that the discretion ought to be exercised liberally. Sufficiently strong reasons must be shown why the new evidence was not adduced at the assessment before the Registrar.

25 The next question to ask is whether the second and third conditions in Ladd v Marshall, namely, that the evidence must be such that, if given, it would probably have an important influence on the result of the case and that it must be apparently credible though it need not be incontrovertible, are in any way relevant. To our mind, these two conditions are eminently reasonable ones. If the new evidence sought to be admitted cannot satisfy the two conditions, what would be the point of admitting the evidence? It would be meaningless to do so.

2  Accordingly, to the extent that the judge below held that all the conditions in Ladd v Marshall applied to the present case, we would, with the utmost respect, differ from that view. On the other hand, we would reiterate that it is also wrong to think that a party appealing against a Registrar’s award following an assessment is freely entitled to introduce fresh evidence before the judge. The discretion to admit such evidence is with the judge who should exercise it subject to the conditions we mentioned above. In passing, we would add that we do not see any reason why these conditions should not also apply to other similar proceedings conducted by the Registrar, such as the taking of accounts or the making of inquiries.