1 The claimant, NPS International School Pte Ltd (“NPS”), and the defendant, Raffles Assets (Singapore) Pte Ltd (“Raffles”), signed a letter of intent (“LOI”) in respect of an intended lease by NPS of Raffles’s property at 51 Merchant Road (the “Merchant Road Property”). ¹ The LOI is dated 29 July 2022 (when it was issued by NPS to Raffles) and it was counter-signed by Raffles on 3 August 2022. ²

2 On 3 August 2022, Raffles received from NPS a cheque for $500,000 –the initial deposit amount stipulated under para 11 of the LOI (“Initial Deposit Amount”). ³ That was to be applied towards the security deposit for the intended lease (if the lease were granted). Paragraph 11 of the LOI also specified events that would entitle NPS to a return of the Initial Deposit Amount.

3 Paragraph 3 of the LOI provided that NPS was to obtain regulatory approvals for NPS’s proposed use of the Merchant Road Property as a Foreign Systems School (“FSS”) (“Regulatory Approvals”), within 8 weeks of the signing of the LOI (the “RA Dateline” of 28 September 2022). ⁴

4 Under para 11 of the LOI, one of the events that would entitle NPS to a return of the Initial Deposit Amount was: “Regulatory Approvals referred to in Paragraph 3 (Proposed Use) are not obtained by the RA Dateline and such failure to obtain the Regulatory Approvals by the RA Dateline is not due to the default of the Tenant [NPS]”. ⁵

5 After the signing of the LOI, NPS took some steps to obtain the Regulatory Approvals. It applied to the Urban Redevelopment Authority (“URA”) for change of use (“COU”) of the Merchant Road Property for use as an FSS, but that application was only made on 30 August 2022 (which URA rejected on 26 September 2022). ⁶ On 27 September 2022 (the day before the RA Dateline), NPS reapplied for COU with a revised transport plan for the proposed transportation of its students, but did not receive URA’s COU approval for the Merchant Road Property by the RA Dateline. ⁷ After the RA Dateline, NPS made some further submissions, but never obtained URA’s COU approval for the Merchant Road Property. The last rejection from URA in this regard was on 25 November 2022. ⁸

6 It was not disputed that:

(a) the Regulatory Approvals were not obtained by the RA Dateline of 28 September 2022 (or at all);

(b) the parties did not agree on the terms of a tenancy agreement, and no tenancy agreement was concluded for the Merchant Road Property; and

(c) Raffles did not return the Initial Deposit Amount to NPS.

7 On 6 December 2022, NPS entered into a letter of intent for a potential lease of another property – one at Scotts Road (the “Scotts Road Property”) which it had been considering concurrently with the Merchant Road Property. ⁹ On 11 July 2023, NPS entered into an agreement to lease the Scotts Road Property. ¹⁰ NPS is currently operating out of two premises – a property at Hillside (the “Hillside Property”) for its primary school, and the Scotts Road Property for its secondary school. ¹¹

8 NPS sued Raffles to recover the Initial Deposit Amount. ¹²

9 Raffles resisted NPS’s claim and counterclaimed:

(a) a declaration that the LOI is valid and binding on NPS;

(b) a declaration that NPS had breached the LOI;

(c) damages to be assessed; and

(d) further and/or in the alternative, payment of a reasonable sum, on a quantum meruit basis. ¹³

10 The trial of the matter was bifurcated, essentially between liability and quantum phases (elaborated upon at [152] and [168(a)] below).

11 After the trial of the liability phase, on 20 May 2026 I dismissed NPS’s claim for a return of the Initial Deposit Amount, and granted Raffles’s counterclaim for:

(a) a declaration that the LOI is valid and binding on NPS, at least in relation to paras 3, 11 and 23 (which provided that the parties “shall negotiate in good faith to agree and finalise the terms of the Tenancy Agreement for the Initial Lease Term before the expiry of the RA Dateline”) ¹⁴ ;

(b) a declaration that NPS had breached para 3 of the LOI;

(c) damages to be assessed;

(d) interest, costs, and further or other relief to be reserved to the assessment phase; and

(e) Raffles to be at liberty to apply for wider declarations under prayers 1 and 2 of the counterclaim, and for the question of costs of the liability phase to be determined in advance of the assessment phase.

12 By AD/CA 39/2026, NPS appealed against my decision of 20 May 2026. These are my grounds of decision.

13 Thereafter, Raffles applied for a further declaration that paras 5 and 10 of the LOI are likewise valid and binding. After considering written and oral submissions from the parties, on 21 July 2026 I granted the further declaration sought by Raffles. By AD/CA 56/2026, NPS appealed against my decision on the further declaration. These grounds of decision also address that aspect.

14 NPS was operating out of premises at Chai Chee Lane (the “Chai Chee Property”), the lease for which was due to expire on 31 December 2022. ¹⁵

15 NPS entered into a letter of intent for the purchase of the Hillside Property on 3 December 2021 and a sale and purchase agreement for that property on 3 March 2022. ¹⁶

16 NPS wished to also use either the Merchant Road Property or the Scotts Road Property (but not both), as a replacement for the Chai Chee Property.

17 NPS and Raffles began communicating about the potential lease of the Merchant Road Property through their respective agents in January 2022. ¹⁷

18 NPS and the landlord of the Scotts Road Property began communicating about the potential lease of the Scotts Road Property through their respective agents in April 2022. ¹⁸

19 On 19 April 2022, NPS sought in-principle approval from the Committee of Private Education (“CPE”), for the use of a property as an FSS, in respect of both the Merchant Road Property and the Scotts Road Property. ¹⁹

20 NPS also, through its solicitors, made enquiries with URA about the approved use status (“AUS”) of the Merchant Road Property on 12 and 14 July 2022. ²⁰

21 On 12 July 2022, NPS applied to URA for COU of the Scotts Road Property. ²¹

22 Thereafter (as set out above at [1]–[2], [5]–[7]):

(a) on 29 July 2022, the LOI was issued by NPS to Raffles;

(b) on 3 August 2022, Raffles counter-signed the LOI and received from NPS payment of the Initial Deposit Amount;

(c) on 30 August 2022 and thereafter, NPS applied for COU of the Merchant Road Property but was unsuccessful;

(d) the Regulatory Approvals for the Merchant Road Property were not obtained by the RA Dateline of 28 September 2022, or at all;

(e) the parties did not enter into a tenancy agreement for the Merchant Road Property;

(f) Raffles did not return the Initial Deposit Amount to NPS; and

(g) instead of leasing the Merchant Road Property, NPS leased the Scotts Road Property (for which it entered into the Scotts Road Property LOI on 6 December 2022, and an agreement to lease on 11 July 2023).

23 The Merchant Road Property LOI is headed “NON-BINDING, AND SUBJECT TO CONTRACT & BOARD APPROVAL”. ²² The following paras are of particular note: ²³

24 The key issues for determination were as follows:

(a) Is the LOI valid and binding?

(b) Was NPS entitled to a return of the Initial Deposit Amount?

(c) If the LOI is valid and binding, had NPS breached para 3 of the LOI by:

(i) failing to “promptly apply for Regulatory Approvals”;

(ii) failing to “use best endeavours to expeditiously obtain such Regulatory Approvals”; and/or

(iii) failing to furnish copies of NPS’s applications for Regulatory Approvals to Raffles “as soon as practicable after they have been submitted”?

25 NPS contended that the LOI was not valid and binding. It highlighted that the LOI was marked “NON-BINDING, AND SUBJECT TO CONTRACT & BOARD APPROVAL”. ²⁴ NPS accepted, however, that such language is not necessarily conclusive of the status of the document, but it argued that the presumption that the document is non-binding is not to be displaced unless there is strong and exceptional evidence to the contrary: Norwest Holdings Pte Ltd (in liquidation) v Newport Mining Ltd [2011] 4 SLR 617 (“Norwest”) at [31]–[35], considering the phrase “subject to contract”. ²⁵

26 On the other hand, Raffles cited Norwest for the court’s statement at [24]: “the question whether there is a binding contract between the parties should be determined by considering all the circumstances, not just the inclusion of the stock phrase ‘subject to contract’ (on the basis that the substance of the situation must always prevail).” ²⁶ In that case, the court found that the documentary evidence of the communications pertaining to the transaction contained several indications that the parties had not intended to be contractually bound until a formal sale and purchase agreement was negotiated and executed.

27 Hoon Kee Meng v Dash Living Pte Ltd [2024] SGHC 27 (“Hoon Kee Meng”) concerned an LOI signed by both parties, setting out the key terms of the tenant’s offer to rent a property from the landlord. Clause 2 of the LOI stated that the tenant had the option to renew the lease for a further term of 24 months. The LOI also had a “subject to contract” clause which provided that the lease of the Property was subject to a tenancy agreement. The same clause provided that the tenancy agreement was to be signed within a stipulated period, failing which the good faith deposit was to be refunded to the tenant and thereafter the LOI was to be treated as null and void, and neither party would have claims against the other.

28 The parties in Hoon Kee Meng executed a tenancy agreement, which the court found incorporated the terms of the LOI, and thus the tenant had a right to renew the lease for a further term of 24 months. The court (at [37]–[38]) rejected the landlord’s contention that the “subject to contract” clause in the LOI meant that the LOI was not binding in any way.

29 Similarly, in Toptip Holding Pte Ltd v Mercuria Energy Trading Pte Ltd [2018] 1 SLR 50 (“Toptip”), the Court of Appeal held (at [53]) that

30 The court accepted that a “subject review” clause specifies that “either or both parties’ review of the final terms may be a pre-condition to contract formation” (at [50]), but a binding contract can nevertheless be formed notwithstanding the presence of such a clause: “It is all a question of the context and whether the parties intended to defer legal relations until full details were agreed.” The court (at [51]–[52]) reviewed the various factors that led it to conclude (at [53]) that a binding contract had been formed, which included:

(a) the bid was expressly stated to be an offer on a firm basis (at [46] and [51]);

(b) when its shipbroker accepted the bid, Mercuria remained silent and did not clarify that the bid was not an offer, and no contract could be concluded by accepting it (at [51]); and

(c) Mercuria had no objections to the terms of the bid and were prepared to perform them (at [46] and [52]), with no objection to the main terms.

31 In similar vein, the LOI contains language to the effect that it was an “offer” by NPS capable of “acceptance” by Raffles:

(a) the LOI, drafted as a letter from NPS to Raffles, was described as: “our offer for your kind consideration”; ²⁷ and

(b) the LOI stated that “[t]his LOI remains valid for acceptance until 5 pm on 3 August 2022”. ²⁸

32 Moreover, NPS had no objections to the terms of the LOI (which it had, in the first place, issued) and was prepared to perform them (see [37]–[41], [51]–[52] below).

33 Further, the LOI was the culmination of extensive negotiations for around half a year from January to July 2022, during which various clauses were amended. That is more consistent with the parties intending that the LOI should have some binding effect, rather than none at all. In Hoon Kee Meng at [25], the court similarly noted that the landlord and the tenant had engaged in more than one round of amendments with a view to refining the terms of the LOI in that case.

34 Aspects of the LOI are expressed in terms of obligations. In particular:

(a) paragraph 3 of the LOI stated that “Regulatory Approvals are to be obtained by [NPS]” [emphasis added] within a stipulated period, and that “[NPS] shall promptly apply for Regulatory Approvals and use best endeavours…” [emphasis added];

(b) paragraph 11 of the LOI provided that NPS “shall furnish to [Raffles] a cheque” [emphasis added] for the Initial Deposit Amount “upon the signing of this LOI, which shall be dealt with in accordance with the terms of this LOI” [emphasis added]; and

(c) paragraph 23 provided that the parties “shall negotiate in good faith to agree and finalise the terms of the Tenancy Agreement for the Initial Lease Term before the expiry of the RA Dateline” [emphasis added].

35 On NPS’s case, none of these were binding obligations. ²⁹ If so, that would mean that:

(a) NPS was not obliged to obtain Regulatory Approvals, it was not obliged to promptly apply for Regulatory Approval and it was not obliged to use best endeavours (or, indeed, do anything) in that regard;

(b) NPS was not obliged to pay the Initial Deposit Amount (or any amount) to Raffles, but if NPS did pay the Initial Deposit Amount, then the parties were not obliged to deal with that in accordance with the terms of the LOI; and

(c) the parties were under no obligation (in terms of good faith or otherwise) to agree and finalise the terms of the tenancy agreement before the expiry of the RA Dateline, or at all.

36 Given the commercial context of the matter, it is Raffles’s position rather than NPS’s that makes sense. NPS urgently needed to secure premises for its operations as the lease of its Chai Chee Property was expiring at the end of 2022 with no prospect of further extension. ³⁰ To that end, Raffles was expected to take the Merchant Road Property off the market, secure alternative premises for its operations, and vacate the Merchant Road Property so as to give NPS possession on the Date of Possession, 1 October 2022. Each side had an interest in the other being subject to legal obligations under the LOI.

37 NPS’s director Mr Shankar Balasubramanian (“Mr Bala”) accepted that:

(a) “parties are expected to complete the obligations… in the letter of intent”; ³¹

(b) NPS “signed up to [the] obligation” in para 3 of the LOI to obtain Regulatory Approvals within an eight-week timeline; ³²

(c) NPS “expected parties to conduct themselves in accordance with the letter of intent after it was signed”; ³³

(d) “NPS is relying on clause 11 of the letter of intent to seek a return of the deposit”; ³⁴ and

(e) the LOI was “an agreement on some terms, on which [NPS] had to act upon”. ³⁵

38 Indeed, when NPS initially sought a return of the Initial Deposit Amount from Raffles, it did so on the premise that the LOI contained binding obligations, specifically, that Raffles was obliged to return the Initial Deposit Amount based on para 11 of the LOI.

39 Thus, on 8 December 2022 NPS’s property agent Jones Lang LaSalle emailed Raffles’s property agent Delasa invoking para 11 of the LOI to seek a return of the Initial Deposit Amount: “We would also appreciate that you formally inform the Landlord to refund the said ‘ Initial Deposit ‘ to the Tenant within 7days [sic], in accordance to Clause 11 of the LOI dated 29th July 2022.” ³⁶

40 In similar vein, NPS’s lawyers wrote to Raffles’s lawyers on 18 January 2023 to demand the return of the Initial Deposit Amount, asserting in the letter that “As Clause 11 of the LOI expressly provided for the return of the Initial Deposit Amount in such circumstances, your client was, and still is obliged to do so” [emphasis added]. ³⁷ They went on to say that “[i]n a vain attempt to circumvent its obligation under Clause 11, your client has now raised various allegations” [emphasis added]. ³⁸ It is telling that in demanding the return of the Initial Deposit Amount, NPS asserted that Raffles had an “obligation under Clause 11” [emphasis added] of the LOI to do so, despite saying in the same letter that the LOI was “non-binding” and “subject to contract”. ³⁹

41 When NPS commenced proceedings against Raffles for a return of the Initial Deposit Amount, in HC/OA 723/2023 (before that was converted to this originating claim, HC/OC 32/2024), that claim was made pursuant to para 11 of the LOI, with NPS asserting that:

(a) “Pursuant to Clause 11 of the LOI… [NPS] paid the sum of S$500,000 to Raffles as an Initial Deposit Amount…”. ⁴⁰

(b) “[U]nder Clause 11 of the LOI, Raffles was obliged to return the Initial Deposit Amount to NPSIS … by 8 October 2022”. ⁴¹

(c) “In breach of its obligations under Clause 11 of the LOI, Raffles failed, refused and/or neglected to return the Initial Deposit Amount to [NPS]. [NPS] has therefore commenced this originating application under Clause 11 for the return of its Initial Deposit Amount to [NPS], with interest and costs.” ⁴²

42 NPS’s position at trial that nothing in the LOI was binding, not even para 11, which it had invoked in commencing proceedings against Raffles, is evidently an afterthought. It was only in NPS’s statement of claim dated 14 December 2023 (“SOC”), some four months after Mr Bala’s first affidavit dated 21 July 2023 invoking para 11 of the LOI, that NPS took the position that nothing in the LOI was binding, and sought a return of the Initial Deposit Amount primarily based on restitution, ⁴³ and only secondarily on the alternative basis of contract, based on para 11 of the LOI, if the LOI were regarded as a legally binding agreement. ⁴⁴

43 Even so, NPS’s restitutionary claim (whilst maintaining that the LOI is non-binding) was premised on it having complied with the LOI. NPS pleaded:

(a) it transferred the Initial Deposit Amount to Raffles “in consideration” of the terms stated in para 11 of the LOI;

(b) the parties’ agreement as to how the Initial Deposit Amount would be dealt with was contained in or evidenced by the terms of the LOI, in particular, para 11; ⁴⁵

(c) there has been a total failure of consideration and/or failure of basis in respect of the payment of the Initial Deposit Amount “as the Regulatory Approvals could not be obtained for reasons that were not within [NPS’s] control, and/or were not the result of any default(s) on the part of [NPS], and no formal tenancy agreement could be entered into for the Property”. ⁴⁶

44 It is telling that in seeking the return of the Initial Deposit Amount based on restitution, NPS asserted that the Regulatory Approvals could not be obtained for reasons that were not within NPS’s control and/or were not the result of any default(s) on the part of NPS. ⁴⁷ Why did NPS say it was not in “default” for the Regulatory Approvals not being obtained, if the LOI were non-binding, and NPS was under no obligation to obtain the Regulatory Approvals or do anything in that regard? The language used – “default” for “failure” to obtain the Regulatory Approvals – suggests that NPS was obliged to do so in the first place.

45 NPS argued that the marking of the LOI as “non-binding” and “subject to contract” is a strong indicator that the LOI was entirely non-binding, and there would only be a binding contract if the relevant contract were executed, that contract being the tenancy agreement. ⁴⁸

46 A comparison of the LOI with what the tenancy agreement would have covered reveals the fallacy in this argument: the tenancy agreement would not have covered all the terms in the LOI, which then begs the questions:

(a) Is the phrase “subject to contract” applicable to terms that would only be addressed in the LOI?

(b) Are the terms that would only be addressed in the LOI non-binding?

47 The use of the phrase “subject to contract” in the context of some (or all terms) of a contract having been agreed, may mean that “unless and until a formal written contract has been executed and exchanged by the parties there is no binding and enforceable contract between them” (Thomson Plaza (Pte) Ltd v Liquidators of Yaohan Department Store Singapore Pte Ltd [2001] 3 SLR 437 at [27], cited in Ground & Shap Precision Engineering Pte Ltd v Midview Realty Pte Ltd [2008] SGHC 160 at [18], in turn cited in Norwest at [23]).

48 The premise, though, is that the terms of the intended contract are “subject to contract”. The same reasoning cannot readily be applied to terms agreed between the parties that would not find their way into the intended contract. Thus, in the present case, the tenancy agreement would not address the payment of the Initial Deposit Amount (in advance of a tenancy agreement), or its return (or non-return), or the obtaining of Regulatory Approvals. NPS’s payment of the Initial Deposit Amount, and it having to obtain the Regulatory Approvals, were matters that had to take place before any tenancy agreement, which would not be addressed in any tenancy agreement. Likewise, whether Raffles had to return the Initial Deposit Amount, or could keep it, was a matter that would not be addressed in the tenancy agreement, but was addressed in the LOI.

49 The phrase “subject to contract” cannot be applied to those stipulations in the tenancy agreement, for the parties were not intending that any agreement on those matters would be covered in the tenancy agreement. Likewise, it is inappropriate for the phrase “non-binding” to be used to deprive the parties’ agreement on those matters of binding effect, for reasons discussed above.

50 The fact that the intended further “contract” was the tenancy agreement simply means that the parties did not intend the LOI to be a binding lease/tenancy or tenancy agreement – at that point there was no lease/tenancy, or tenancy agreement, between them in relation to the Merchant Road Property. But that does not mean that the LOI did not contain binding obligations regarding what they each had to do in the lead up to the intended tenancy agreement.

51 In any event, both parties conducted themselves as if the LOI did contain binding obligations, a common position that continued through NPS’s demand for repayment (and commencement of legal proceedings in July 2023) pursuant to para 11 of the LOI, until NPS changed its position in its SOC.

52 In Toptip, the court stated (at [54]–[57]) that Mercuria’s subsequent conduct clearly indicated that Mercuria considered a binding contract to exist. In this regard, even if a “subject to contract” (or “non-binding”) marking initially has the effect of preventing a contract from being formed, parties can waive that stipulation by subsequent conduct: RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG [2010] 3 All ER 1 at [86]. In the present case, if the LOI were entirely non-binding, by acting on it as if it were binding, ⁴⁹ the parties had waived the “non-binding” and “subject to contract” stipulations, or are estopped from denying that the LOI is binding. ⁵⁰ NPS’s conduct which evinces its intention to be bound by the LOI includes:

(a) On 26 September 2022, NPS’s lawyers wrote to Raffles’s lawyers requesting that the “LOI be varied” [emphasis added] to extend the RA Dateline by four weeks. ⁵¹ If NPS indeed regarded the LOI, and accordingly the RA Dateline, to be non-binding, there would have been no need for an extension.

(b) On 19 December 2022, NPS’s property agent wrote to Raffles’s property agent, stating that “[a]s per the LOI, NPS has provided evidence of applications” [emphasis added]. ⁵² That was an update as to NPS’s supposed compliance with the LOI, specifically its obligation under para 3 of the LOI to furnish Raffles with copies of its applications for Regulatory Approvals “as soon as practicable after they have been submitted”. ⁵³

(c) NPS repeatedly asserted that it was entitled to the return of the Initial Deposit Amount, and that Raffles was “obliged” to return it, pursuant to para 11 of the LOI (see [39]–[42] above).

(d) Both NPS and Raffles continued to negotiate on the material terms of the prospective tenancy agreement before the expiry of the RA Dateline, in line with para 23 of the LOI. ⁵⁴

53 On this issue, I thus found the LOI to be valid and binding. Specifically, at the hearing on 20 May 2026 (after I heard oral submissions that day), I granted a declaration that the LOI is valid and binding on NPS, at least in relation to paras 3, 11 and 23 (which lie at the heart of Raffles’s counterclaim). I will address at [163]–[177] below the further declaration I granted in respect of paras 5 and 10 of the LOI.

54 In its SOC, NPS sought a return of the Initial Deposit Amount:

(a) based on restitution, if the LOI were not binding; ⁵⁵ and

(b) on the terms of the LOI, if the LOI were binding. ⁵⁶

55 As I found the LOI to be binding, whether NPS had a right to recover the Initial Deposit Amount would depend on the terms of the LOI.

56 The relevant portion of para 11 of the LOI provides as follows: ⁵⁷

57 The Regulatory Approvals were not obtained by the RA Dateline, and the terms of the tenancy agreement for the Initial Lease Term were not agreed and finalised between the parties by the RA Dateline. NPS thus contended that it was entitled to a return of the Initial Deposit Amount in either of the following situations:

(a) the failure to obtain the Regulatory Approvals by the RA Dateline was “not due to the default of [NPS]”; or

(b) “the terms of the Tenancy Agreement for the Initial Lease Term [were] not agreed and finalised between the Landlord and the Tenant by the RA Dateline”, even if the failure to obtain the Regulatory Approvals by the RA Dateline were due to the default of NPS, and even if that were the reason why the parties did not agree and finalise the terms of the tenancy agreement by the RA Dateline.

58 I did not accept NPS’s suggested reading of para 11 of the LOI, as I explain below at [59]–[70]. In brief, if the failure to obtain the Regulatory Approvals by the RA Dateline were due to the default of NPS (as I found it was), then NPS was not entitled to a return of the Initial Deposit Amount, even if the parties had not agreed and finalised the terms of the tenancy agreement by the RA Dateline, and especially if the reason they had not agreed and finalised those terms was that Regulatory Approvals would not be obtained by the RA Dateline.

59 I first start by considering the case put forward by NPS in contemporaneous correspondence, followed by the pleadings and the evidence.

60 NPS’s property agent’s email of 8 December 2022 (mentioned above at [39]), simply asked that the Initial Deposit Amount be refunded “in accordance to Clause 11 of the LOI”. ⁵⁸

61 Then, NPS’s lawyers’ letter of demand dated 18 January 2023 (mentioned above at [40]) stated at para 2(2) that: ⁵⁹

Following that, the letter stated at para 2(3) that “As Clause 11 of the LOI expressly provided for the return of the Initial Deposit Amount in such circumstances, your client was, and still is, obliged to do so.” ⁶⁰ The premise of that letter was: as the Regulatory Approvals had not been obtained (and this was not NPS’s fault), parties were unable to execute the tenancy agreement, and so Raffles was obliged to return the Initial Deposit Amount to NPS. It was not suggested that even if it were NPS’s fault that the Regulatory Approvals had not been obtained, Raffles was still obliged to return the Initial Deposit Amount to NPS because the parties had not agreed and finalised the terms of the tenancy agreement.

62 When NPS commenced proceedings against Raffles for a return of the Initial Deposit Amount, in HC/OA 723/2023, the position it took regarding the operation of para 11 of the LOI was as follows:

(a) pursuant to para 11 of the LOI, Raffles was obliged to return the Initial Deposit Amount to NPS, but in breach of that obligation Raffles had not done so; ⁶¹

(b) Raffles was obliged to return the Initial Deposit Amount because URA did not grant approval by the RA Dateline of 28 September 2022 and the parties did not agree and finalise the terms of the tenancy agreement by the same deadline; ⁶²

(c) the RA Dateline passed on 28 September 2022 without NPS having obtained the Regulatory Approvals, despite NPS having promptly applied for COU by its 30 August 2022 Application, and having used its best endeavours to obtain the Approvals; NPS believed the failure to obtain the Regulatory Approvals was not through any default of its own; ⁶³

(d) further and/or in any event,

(i) NPS and Raffles also did not agree upon and finalise the tenancy agreement by the RA Dateline; ⁶⁴ as with the denial of the Regulatory Approvals, this was not due to any default of any party, as NPS and Raffles negotiated in good faith on the same pursuant to para 23 of the LOI; ⁶⁵ the parties did not agree upon and finalise the tenancy agreement by the RA Dateline as some time was taken by parties in reviewing and exchanging several drafts of the tenancy agreement; ⁶⁶ and

(ii) as it would have been futile for parties to conclude the tenancy agreement without first obtaining the Regulatory Approvals, parties’ negotiations fell through as the Regulatory Approvals were not granted, whether by the RA Dateline or at all. ⁶⁷

63 NPS cited para 11 of the LOI both in relation to the Regulatory Approvals not being obtained by the RA Dateline, as well as the tenancy agreement not being agreed and finalised by the RA Dateline. However, NPS linked the two by recognising that the negotiations over the tenancy agreement fell through as the Regulatory Approvals were not granted. NPS maintained that this was not its fault, for it had promptly applied for and used best endeavours to obtain the Regulatory Approvals.

64 NPS did not run an alternative case that even if it were at fault in not obtaining the Regulatory Approvals by the RA Dateline, it was nevertheless entitled to the return of the Initial Deposit Amount because the parties had not agreed and finalised the tenancy agreement by the RA Dateline. Indeed, NPS implicitly recognised that if it were at fault in not obtaining the Regulatory Approvals by the RA Dateline, it would also have been its fault that the tenancy agreement was not agreed and finalised by the RA Dateline.

65 In NPS’s SOC, it paraphrased para 11 of the LOI, citing both the failure to obtain Regulatory Approvals by the RA Dateline, and the terms of the tenancy agreement not being agreed and finalised by the RA Dateline. ⁶⁸ NPS did not suggest that if it were at fault in not obtaining the Regulatory Approvals by the RA Dateline, it would nevertheless be entitled to the return of the Initial Deposit Amount because the parties had not agreed and finalised the tenancy agreement by the RA Dateline.

66 Consistent with the position taken in Mr Bala’s first affidavit, NPS maintained that neither the failure to obtain the Regulatory Approvals nor the failure to conclude a tenancy agreement by the RA Dateline was the result of any default on its part. ⁶⁹

67 There was no reason for Raffles to think that NPS had resiled from its earlier position (stated by Mr Bala on oath) that the parties’ negotiations fell through because the Regulatory Approvals were not granted (and so, if NPS were at fault for the Regulatory Approvals not being granted, it would also have been its fault that the tenancy agreement was not agreed and finalised by the RA Dateline).

68 Mr Bala’s affidavit of evidence-in-chief (“AEIC”) also did not suggest that NPS was seeking the return of the Initial Deposit Amount if it were at fault for the Regulatory Approvals not being obtained by the RA Dateline, and consequently for the tenancy agreement not being agreed and finalised by then.

69 I thus agreed with Raffles’s submissions that NPS had not pleaded, or led evidence for, a claim for the return of the Initial Deposit Amount in a situation where NPS were at fault for the Regulatory Approvals not being obtained by the RA Dateline, which led to the tenancy agreement not being agreed and finalised by then. ⁷⁰ In particular, NPS failed to plead or prove that if the Regulatory Approvals had been obtained by the RA Dateline, the parties would nevertheless have failed to agree and finalise the terms of the tenancy agreement. Indeed, what NPS said ran counter to that, ie, that the tenancy agreement was not agreed and finalised by the RA Dateline because the Regulatory Approvals were not obtained by the RA Dateline.

70 Even if it were open to NPS to assert such a claim (that it could recover the Initial Deposit Amount even if it were at fault in not obtaining the Regulatory Approvals), it would be flawed:

(a) Para 11 of the LOI must be read in conjunction with para 23 of the LOI which obliged the parties to negotiate in good faith to agree and finalise the terms of the Tenancy Agreement before the expiry of the RA Dateline. This is consistent with the position in Mr Bala’s first affidavit. ⁷¹ If NPS’s default were the cause of the Regulatory Approvals not being obtained by the RA Dateline, and that in turn caused negotiations over the tenancy agreement to fall through, then NPS would be in breach of para 23 of the LOI.

(b) To allow NPS to rely on the tenancy agreement not being agreed and finalised by the RA Dateline to recover the Initial Deposit Amount, where it had caused that by its default in failing to obtain the Regulatory Approvals in time, would allow NPS to take advantage of its own wrong (indeed, its breach of para 23 of the LOI) – that could not have been what the parties intended.

(c) Consequently, the reference in para 11 of the LOI to the terms of the tenancy agreement not being agreed and finalised by the RA Dateline only covers the situation where the Regulatory Approvals were obtained by the RA Dateline, but the parties nevertheless did not agree and finalise the tenancy agreement by then.

(d) Paragraph 11 of the LOI does not entitle NPS to a return of the Initial Deposit Amount where NPS had defaulted in its obligations to obtain the Regulatory Approvals by the RA Dateline. This is how para 11 should be interpreted: the first event entitling NPS to a return of the deposit is the Regulatory Approvals not being obtained by the RA Dateline (and that not being due to the default of NPS); the second event entitling NPS to a return of the deposit is the terms of the tenancy agreement not being agreed and finalised by the RA Dateline (which presupposes that NPS was not in default of its obligations to obtain the Regulatory Approvals by the RA Dateline).

71 The key question is thus whether NPS had defaulted in its obligations under para 3 of the LOI (read with para 11) to obtain the Regulatory Approvals by the RA Dateline. I found that NPS had breached para 3 of the LOI in this regard, and so dismissed NPS’s claim for a return of the Initial Deposit Amount. I explain my reasons for finding NPS in such breach of para 3 of the LOI, in the next section.

72 Paragraph 3 of the LOI provided that the Regulatory Approvals were to be obtained by the tenant within 8 weeks of signing the LOI (ie, the RA Dateline). This was however not an absolute or strict obligation. Rather, what was required of NPS, was (see [23] above):

(a) to “promptly apply for Regulatory Approvals”;

(b) to “use best endeavours to expeditiously obtain such Regulatory Approvals…”; and

(c) that “[c]opies of [NPS’s] applications for Regulatory Approvals are to be furnished to [Raffles] as soon as practicable after they have been submitted.”

73 I found NPS to have breached para 3 of the LOI in all these three respects, as I explain below.

74 Paragraph 3 of the LOI expressly required NPS to “promptly apply for Regulatory Approvals”. “Promptly” connotes a degree of urgency, perhaps not to the extent of “immediately” or “forthwith”, but urgent, nevertheless. The LOI did not merely say that NPS was to “apply” for Regulatory Approvals, but that it was to “promptly” apply for Regulatory Approvals. This was reinforced by the further obligation to “use best endeavours to expeditiously obtain such Regulatory Approvals” [emphasis added]. The sense of urgency conveyed by “promptly” should also be understood in the context of NPS having eight weeks (56 days) until the RA Dateline, within which to obtain the Regulatory Approvals.

75 The eight-week (56-day) period within which NPS was to obtain the Regulatory Approvals started running from 3 August 2022. However, NPS took 23 days (until 26 August 2022) to appoint consultants for the making of its COU application to URA (an application which NPS knew was necessary), and that application was made on 30 August 2022, by which time almost half of the eight-week period had passed. NPS had no good excuse for this delay. Accordingly, I found that NPS had breached its obligation to “promptly apply for Regulatory Approvals”, as I explain below.

76 NPS’s case is that it had promptly applied for the Regulatory Approvals, by way of its 30 August 2022 COU application to URA. ⁷² By the time NPS made the 30 August 2022 COU application, however, it was almost four weeks into the eight-week period within which NPS was to obtain the Regulatory Approvals. It was only on 26 August 2022 that NPS engaged FiveFootWay Consultants Pte Ltd (“FFW”), an architectural and conservation consultancy, to assist it in preparing and filing the COU application, and the 30 August 2022 COU application was submitted four days later (2 working days later, if the intervening weekend were excluded). ⁷³

77 No issue was taken with the prior of four calendar days (two working days) between FFW’s engagement on Friday 26 August 2022 and the COU application being submitted on Tuesday 30 August 2022, but Raffles criticised NPS for delaying until 26 August 2022 to engage FFW to begin the process. ⁷⁴ By then, it had been 23 days since the LOI was signed by both parties, with NPS being obliged to obtain the Regulatory Approvals within 8 weeks (56 days).

78 In his email of 26 August 2022 to FFW, Mr Bala expressly recognised that NPS had “lost some time”. He said: ⁷⁵

79 NPS said that since 12 July 2022 (before the LOI was signed) it had been enquiring with URA on the AUS for the Merchant Road Property. ⁷⁶ It claimed that the AUS would determine the next steps required for NPS to obtain the Regulatory Approvals, in particular, if it would need to submit a COU application. ⁷⁷ URA however never confirmed the AUS to NPS’s satisfaction. NPS said that at a meeting on 26 August 2022, the Economic Development Board (“EDB”) indicated that it would assist in expediting a response from URA, but advised NPS to proceed with filing a COU application with URA, and so NPS engaged FFW on 26 August 2022 and the COU application was submitted on 30 August 2022. ⁷⁸ It should be noted that NPS was able to engage FFW the same day that EDB advised NPS to proceed with filing a COU application; NPS was already working with FFW in relation to the Scotts Road Property.

80 NPS’s pleaded position that URA’s confirmation of the AUS would determine whether NPS would need to submit a COU application is contradicted by Mr Bala’s evidence in his AEIC, where he said: ⁷⁹

81 Mr Bala’s statement that “[o]f course, [NPS] was aware that a COU application for the Property would be necessary” ran counter to NPS’s pleaded position that the AUS would determine if NPS would need to submit a COU application. ⁸⁰

82 On the stand, however, Mr Bala then resiled from what he had said in his AEIC: he claimed he understood from the Committee for Private Education (CPE) that “no approval [from URA] is required if Merchant Road is approved for commercial [school] use.” ⁸¹ This is, however, unpleaded, unsubstantiated and contrary to the evidence.

83 NPS never pleaded that so long as the Merchant Road Property had been approved for commercial school use, the CPE could approve NPS’s operation of an FSS there (in a way that could override URA’s position on whether a COU application was necessary), nor that this is what NPS had thought.

84 In NPS’s opening statement, NPS stated: ⁸²

As late as its opening statement, NPS still recognised that a COU application was necessary (although it suggested it could be “less detailed” if URA confirmed that the AUS was “commercial school”. NPS did not say that if URA had confirmed this, no COU application would be necessary.

85 Besides Mr Bala’s statement in his AEIC that: ⁸³

he also stated that “FFW had also indicated to [NPS] that where the AUS of a property was similar to the proposed new use in a COU application, the chances of the COU application being approved would be higher”, ⁸⁴ ie, if the AUS was “commercial school”, the chances of a COU application for “FSS” would be higher, and not that no COU application would be necessary.

86 I did not accept Mr Bala’s suggestion that knowing the AUS of a property would make it easier to identify the issues that the COU application should address. A COU application identifies the “Proposed New Use” of the property, ⁸⁵ and it is unnecessary to say what the current AUS is. Indeed, NPS’s 30 August 2022 COU application was submitted without it having obtained whatever AUS confirmation it had been seeking from URA (which it never did obtain).

87 NPS relied on CPE’s email of 6 May 2022, in relation to the Scotts Road Property, which states that CPE would “not have any issues to give permissions” as long as NPS had obtained approved usage as “commercial school”. ⁸⁶ That however only spoke about CPE’s own position; it said nothing about whether URA might require a COU application for a change of use from commercial school to FSS.

88 The evidence of Mr Lin, a property consultant from FFW, in relation to his interactions with Mr Bala before in July 2022 (ie, before the LOI) was that Mr Bala had told him that an application had to be made for FSS and not commercial school. ⁸⁷ The COU application submitted for the Scotts Road Property on 12 July 2022 was, accordingly, for FSS and not for use as a commercial school. This is consistent with what URA told FFW on 6 July 2022 in relation to the Scotts Road Property, that a COU application “should be based on the intended use of the premises. If it is operated as a Foreign System School, the application should reflect it accordingly.” ⁸⁸

89 Prior to the LOI, NPS already knew the following about the Merchant Road Property:

(a) “The zoning of the building is Commercial. Hence a commercial school would be allowable. A Foreign System School or Tertiary Educational Institute would require to operate under Educational zoning” (as stated in Raffles’s property agent’s email of 7 January 2022 to NPS’s property agent); ⁸⁹

(b) that the property was “[c]urrently operating as a commercial school” (as stated in Mr Bala’s email of 19 April 2022 to CPE, and reiterated on 5 August 2022); ⁹⁰ and

(c) that URA’s Grant of Written Permission dated 28 September 2012 had approved COU for the Merchant Road Property to “commercial school”, save that an area in the basement was approved for such use on a temporary basis for ten years until 28 September 2022 (and Mr Bala confirmed that this was provided to NPS before the LOI). ⁹¹

90 From what has been set out in the preceding two paras, NPS knew, when the LOI was entered into, that a COU application was required to operate an FSS at the Merchant Road Property.

91 In para 3 of the LOI, the parties agreed that the “Regulatory Approvals” which NPS was to obtain were: “required approvals/in-principle approval/confirmation from the URA and Committee for Private Education (CPE) to operate a FSS at the Demised Premises [the Merchant Road Property] (“Regulatory Approvals”)”. ⁹² The parties agreed that NPS would obtain approvals from “the URA and [CPE]”, not CPE alone.

92 I did not accept that only CPE’s approval was necessary, and not also URA’s approval. NPS did not establish that CPE was superior to URA, in the sense that CPE’s approval could displace URA’s statutory role in approving land use.

93 Nor did I accept that NPS thought that it did not need to apply to URA at all (but only to CPE), or that it did not need to submit a COU application for FSS use, so long as URA confirmed the AUS of the Merchant Road Property to be “commercial school”.

94 In any event, in relation to NPS’s obligations under para 3 of the LOI, it is no excuse to say that Mr Bala and/or NPS had focused on getting URA confirmation of AUS, rather than proceeding with a COU application, because:

(a) they (mistakenly) thought that only CPE approval was necessary;

(b) they wanted to know the chances of getting COU approval; or

(c) they (mistakenly) thought that knowing the AUS might make it easier to identify the issues that the COU application should address.

95 Under para 3 of the LOI, NPS was obliged to “promptly apply” for the Regulatory Approvals. In waiting for 23 days until 26 August 2022 to appoint FFW as its consultants for the COU application for the Merchant Road Property (when NPS had already appointed FFW in July 2022 for the COU application for the Scotts Road Property), NPS had failed to promptly apply for the Regulatory Approvals. NPS had thus breached para 3 of the LOI in this regard.

96 NPS’s delay in making the COU application also breached the obligation to “use best endeavours to expeditiously obtain such Regulatory Approvals”. That was also my view after considering NPS’s conduct from the time it submitted the 30 August 2022 COU application until the RA Dateline of 28 September 2022 passed.

97 A person under an obligation to use “best endeavours” must “take all those reasonable steps which a prudent and determined man, acting in the interests of the obligee and anxious to procure the contractually-stipulated outcome within the available time, would have taken.” (KS Energy Services Ltd v BR Energy (M) Sdn Bhd [2014] 2 SLR 905 (“KS Energy”) at [46]–[47], [52], citing Travista Development Pte Ltd v Tan Kim Swee Augustine [2008] 2 SLR(R) 474 (“Travista”) at [22].

98 Further, “once the obligee points to certain steps which the obligor could have taken to procure the contractually-stipulated outcome, the burden ordinarily shifts to the obligor to show that it took those steps, or that those steps were not reasonably required, or that those steps would have been bound to fail” (KS Energy at [92]; see also Travista at [27]).

99 In response to NPS’s 30 August 2022 COU application, URA raised queries on 6 September 2022 about estimated students’ enrolment, students’ profile, operating hours, location and timing of pick-up and drop-off, and transport arrangement. ⁹³ FFW responded to those queries on 8 September 2022, and provided a transport plan. ⁹⁴

100 Prior to submitting its 30 August 2022 COU application for the Merchant Road Property, NPS was already aware that in relation to its COU application for the Scotts Road Property, URA had asked about the number and profile of students, operating hours, and traffic mitigation measures (whether school bus would be provided/pick-up and drop-off timings, etc). ⁹⁵ NPS ought to have anticipated that the same queries would be asked in relation to the Merchant Road Property and provided that information with its 30 August 2022 COU application. For one thing, it was obvious that URA would be concerned about the traffic situation associated with NPS’s proposed use of the Merchant Road Property as an FSS (just as URA had been concerned with such use of the Scotts Road Property). Yet NPS did not submit a transport plan with its 30 August 2022 COU application. Instead, NPS waited for URA to raise queries on 6 September 2022 and then responded on 8 September 2022 with answers and a transport plan. In effect, NPS lost another 9 days.

101 The transport plan submitted by NPS on 8 September 2022 for the Merchant Road Property was an unrealistic one: one could not reasonably expect URA to provide COU approval based on such a plan. NPS proposed to use 8 medium and 3 large buses to pick-up and drop-off students at Solomon Street and Merchant Road (including the narrow stretch of road, with a roundabout, at Solomon Street). A video that was submitted by FFW to URA on 16 November 2022 (which was shown in court) ⁹⁶ showed that a large bus could pass through Solomon Street and the roundabout there, but it would take up most of the one-lane road, and if it stopped to pick-up or drop-off students, any vehicles behind it would be held up.

102 On 23 September 2022, FFW proposed to also use Merchant Loop. ⁹⁷

103 On 26 September 2022, just two days before the RA Dateline of 28 September 2022, URA rejected NPS’s 30 August 2022 COU application, saying: ⁹⁸

104 NPS submitted a revised COU application on 27 September 2022 with a transport plan that was an improvement over its 8 September 2022 transport plan. The changes made included:

(a) “revising the bus pick-up/drop-off arrangement to accommodate the traffic flow on the subject site (i.e. use of minibuses only – no medium or large buses and drop off to be done within the building basement carpark)”; ⁹⁹ and

(b) reducing the percentage of students who would be taking school buses was from 65% to 50% “to reduce the total capacity of its school bus services in the hopes that this would reduce traffic congestion concerns”. ¹⁰⁰ This was later reduced further to 16% on 3 October 2022. ¹⁰¹

105 The 27 September 2022 submission was, however, made on the eve of the RA Dateline of 28 September 2022, and there was no realistic prospect of URA evaluating it and giving its approval by the next day. Indeed, URA did not respond by the RA Dateline of 28 September 2022, and the RA Dateline thus passed within the Regulatory Approvals having been obtained.

106 NPS’s position was that whether it was entitled to a return of the Initial Deposit Amount was to be tested as at the RA Dateline, and that upon the lapsing of the RA Dateline it was entitled to a return of the Initial Deposit Amount. ¹⁰² It asserted that it had exercised its best endeavours up till the RA dateline, ¹⁰³ and so the failure to obtain the Regulatory Approvals by the RA Dateline was not due to its default.

107 I decided that NPS had not only failed to “promptly apply” for the Regulatory Approvals, but it had also failed to “use best endeavours to expeditiously obtain” the Regulatory Approvals.

108 If NPS had used best endeavours, it would have:

(a) engaged FFW sooner than 26 August 2022, and thus submitted its COU application for Merchant Road sooner than 30 August 2022;

(b) anticipated URA’s queries (on the same issues as URA had earlier raised in relation to the Scotts Road Property) and provided the relevant information with its 30 August 2022 COU application, rather than only on 8 September 2022, and provided a transport plan with its 30 August 2022 COU application, rather than only on 8 September 2022; and

(c) submitted a transport plan that would not involve traffic congestion on public roads in the area (like the 27 September 2022 plan, as compared to the 8 September 2022 plan).

109 I agreed with NPS that whether it had breached para 3 of the LOI, and whether it was entitled to a return of the Initial Deposit Amount, should be evaluated by looking at its conduct up to the lapsing of the RA Dateline. NPS had on 26 September 2022 sought an extension of the RA Dateline by four weeks, but Raffles did not agree to this. ¹⁰⁴

110 NPS however said that its conduct after the RA Dateline (it said it continued to take reasonable steps in good faith) reinforced the conclusion that what it did before the RA Dateline comprised its best endeavours at obtaining the Regulatory Approvals. ¹⁰⁵ On the other hand, Raffles says that NPS sabotaged its chances of obtaining Regulatory Approvals for the Merchant Road Property, at least from the time it understood that the Scotts Road Property was more likely to receive approval. ¹⁰⁶

111 In any event, what happened after the RA Dateline would inform the counterfactual as to what would have happened if NPS had promptly applied for, and used best endeavours to obtain, the Regulatory Approvals.

112 On 26 September 2022, two days before the RA Dateline, NPS’s lawyers wrote to Raffles’s lawyers seeking (among other things) an extension of the RA Dateline by four weeks. ¹⁰⁷ Raffles’s lawyers asked for copies of NPS’s applications for Regulatory Approvals and copies of all correspondence with the relevant authorities, so as to consider NPS’s request. ¹⁰⁸ Raffles ultimately never agreed to extend the RA Dateline by four weeks (as proposed by NPS) or to any other specific date. Instead, Raffles proposed “to move forward with the Lease if NPS were able to rectify its breaches and obtain the Regulatory Approvals quickly (and without any further delay)”. ¹⁰⁹ Raffles counter-proposed that the LOI be varied such that the Date of Possession and commencement date of the lease term may proceed pending the obtaining of Regulatory Approvals. ¹¹⁰ NPS did not agree to this. In the end, the parties never agreed on any variation of the LOI, the RA Dateline remained 28 September 2022, and whether NPS was entitled to a return of the Initial Deposit Amount would depend on the terms of the LOI.

113 After submitting its 27 September 2022 application to URA, FFW sent chaser emails to URA on 3, 5 and 11 October 2022. ¹¹¹ NPS also sent what it describes as “variations to the 27 September Application” on 3 and 13 October 2022. ¹¹²

114 The 3 October 2022 transport plan proposed that only 16% of students would use school buses, only minibuses would be used, and the pick-up and drop-off location would be at Solomon Street roundabout, with 12 minibuses arranged in four timings for pick-up and drop-off, ie, 3 minibuses each time. ¹¹³

115 The 13 October 2022 transport plan proposed that 50% of the minibuses would pick-up and drop-off at the Solomon Street roundabout and the remaining 50% would pick-up and drop-off at the Merchant Road Property’s basement carpark. ¹¹⁴

116 NPS, FFW and the authorities had a meeting on 14 October 2022. ¹¹⁵ There are no minutes or notes of that meeting in evidence. I shall return to what happened at the meeting.

117 Following the meeting:

(a) on 20 October 2022, NPS submitted a revised transport plan for the Scotts Road Property which proposed the use of “4 nos of large bus (40 seaters)” and reduced the number of students who would be using school buses from 50% to 20%; ¹¹⁶ and

(b) on 27 October 2022, NPS submitted a revised transport plan for the Merchant Road Property which proposed that pick-up and drop-off be (a) at the Solomon Street roundabout by a “mixture no of 6 small (13 seater) & medium (25 seater) buses at a time, with 3 time slots from 8-9am in the morning and 15.30-16.30pm in the afternoon”; and (b) at the basement carpark by “[s]ome numbers of smaller minibuses (11 seater)”. ¹¹⁷

118 NPS contended that at the 14 October 2022 meeting with the authorities, the authorities rejected the 27 September 2022 transport plan, the 3 October 2022 transport plan, and the 13 October 2022 transport plan. ¹¹⁸ Raffles disputes this – in particular, it does not accept that the authorities rejected the 27 September 2022 transport plan in its original form. ¹¹⁹

119 I agreed with Raffles’s contention that the authorities had not rejected the 27 September 2022 transport plan in its original form.

120 First, Mr Bala’s own evidence in his AEIC that the authorities rejected “the 27 September Application in its current form” [emphasis added]; ¹²⁰ he did not say that the authorities rejected the 27 September 2022 application in its original form. By the time of the 14 October 2022 meeting, the 27 September 2022 application had been varied on 3 October 2022, and again on 13 October 2022 – NPS itself describes those as “variations” to the 27 September 2022 application: see [113] above. In correspondence with URA, FFW described the 3 October 2022 transport plan as a “revised transportation arrangement”, ¹²¹ The 3 October 2022 transport plan itself referred to “[t]he new buses arrangement”, ¹²² and so did the 13 October 2022 transport plan. ¹²³

121 The authorities would have understood the 3 October 2022 and 13 October 2022 transport plans to be successive variations of the 27 September 2022 transport plan, such that they only needed to consider the latest version, ie, the 13 October 2022 transport plan. To illustrate: on 3 October 2022, NPS had revised the percentage of students who would be taking school buses from 50% (in its 27 September 2022 transport plan) to 16%. It makes no sense to have expected the authorities to evaluate not only the (better) 16% percentage, but also the (worse) 50% percentage. Likewise, the 3 October 2022 transport plan proposed that all the minibuses would pick-up and drop-off at the Solomon Street roundabout, but that was then varied by the 13 October 2022 transport plan to 50% of the minibuses using the Solomon Street roundabout, and the other 50% using the basement carpark. It makes no sense to have expected the authorities to consider not only the 13 October 2022 transport plan, but also the 3 October 2022 transport plan, and even the 27 September 2022 transport plan.

122 Second, if in fact the authorities had rejected the 27 September 2022 application in its original form (which did not use public roads for pick-up and drop-off, but only the basement carpark), it would have made no sense for NPS to then submit a revised transport plan on 27 October 2022 which would use both the Solomon Street roundabout and the basement carpark.

123 My conclusion regarding the 14 October 2022 meeting was thus as follows:

(a) the authorities did not reject the 27 September 2022 transport plan in its original form;

(b) the authorities did reject the 27 September 2022 transport plan as varied by the 3 October 2022 and 13 October 2022 transport plans, ie, as reflected in the 13 October 2022 transport plan; and

(c) it remained open to NPS to further vary its transport plans for the authorities’ consideration; indeed, it could return to its 27 September 2022 transport plan if it wished.

124 The events after the RA Dateline of 28 September 2022 should also be viewed against the backdrop of how matters were concurrently progressing with the Scotts Road Property.

125 On 4 October 2022, there was a call between Mr Bala and EDB’s Mr Loh, following which on 6 October 2022 Mr Bala sent Mr Loh a message that “we are ok to go with 25 Scott’s if that approval is obtainable quickly”, and “there may be more uncertainty” regarding the Merchant Road Property “due to the approval delay [which] has led to fresh commercial discussions with the landlord”. ¹²⁴ From early October 2022, it would thus have appeared to NPS that it was more likely to obtain regulatory approvals for the Scotts Road Property, and in any event more quickly, than for the Merchant Road Property. However, the “uncertainty” and “approval delay” in relation to the Merchant Road Property resulted from NPS’s breaches of the LOI, as discussed above.

126 That the Scotts Road Property had better prospects for regulatory approvals continued through the 14 October 2022 meeting, after which Mr Loh told Mr Bala, “if your consultants can propose a plan for Scotts Road where there are no more than 4x 40-seater buses at any one point in time, we might be able to find a landing zone”, and “the agencies also feel like Scotts has more middle ground”. ¹²⁵

127 The fact that NPS was concurrently pursuing regulatory approvals for both the Scotts Road Property and the Merchant Road Property did not, in itself, put NPS in breach of the LOI with Raffles. However, it was incumbent on Raffles not to allow its concurrent pursuit of the Scotts Road Property to cause it to breach its obligations to promptly apply for and use best endeavours to obtain the Regulatory Approvals for the Merchant Road Property.

128 I did not find that NPS had sabotaged its applications for the Merchant Road Property (as Raffles suggested). However, a comparison of how NPS had approached its applications for the two properties led me to conclude that even after the RA Dateline, NPS continued not to use best endeavours to obtain the regulatory approvals for the Merchant Road Property.

129 First, after the 14 October 2022 meeting, NPS submitted a revised transport plan for the Scotts Road Property on 20 October 2022, ¹²⁶ but it only did so for the Merchant Road Property on 27 October 2022. ¹²⁷ That indicates that NPS and its consultants FFW had prioritised advancing the application for the Scotts Road Property over that for the Merchant Road Property.

130 Second, the 27 October 2022 transport plan proposed to use not only small buses but also medium buses (whereas the 27 September 2022, 3 October 2022, and 13 October 2022 transport plans had all proposed to use only minibuses).

131 Third, NPS then submitted a 16 November 2022 transport plan which increased the percentage of students using school buses from 16% to 30% (when for the Scotts Road Property, the authorities were told that only 20% of NPS’s students would use school buses). ¹²⁸ The 16 November 2022 transport plan also reintroduced the proposed use of large buses (five 40-seaters) in addition to two medium buses (25-seaters), all seven of which would pick-up and drop-off at “1 timing” at the Solomon Street roundabout. ¹²⁹ This would cause greater traffic congestion as compared to the 3 October 2022, 13 October 2022, and 27 October 2022 transport plans. Moreover, what was proposed flew in the face of the concerns URA had expressed in relation to the 30 August 2022 application, regarding “The proposed pick-up drop-off at roundabout along Solomon Street for medium/large buses” ¹³⁰ and “how narrow the drop off area proposed in Solomon St roundabout [was] for buses”. ¹³¹ The fact that FFW included with the 16 November 2022 transport plan a video showing that a 40-seater bus could pass through Solomon Street does not change the picture.

132 By an 18 November 2022 email, EDB informed NPS that NPS’s COU application for the Merchant Road Property was rejected after “assess[ing] [its] revised traffic arrangement”. ¹³² It said that the Merchant Road Property did not meet the “requirement for a Foreign System School to provide a minimum of 4 coach parking lots within the school’s own compound” (“4-Coach Guideline”) and the “basement carpark has only a headroom of 2m and would not be able to accommodate the coaches”. ¹³³ In the same email, EDB said that the authorities’ “in-principle approval” was given for NPS’s COU application for the Scotts Road Property. ¹³⁴

133 On 21 November 2022, URA granted provisional permission for the use of the Scotts Road Property. ¹³⁵

134 On 6 December 2022, NPS executed an LOI in relation to the Scotts Road Property. ¹³⁶

135 NPS did not pursue the Regulatory Approvals for the Merchant Road Property any further, after what it had successfully achieved in relation to the Scotts Road Property on 18 November 2022, 21 November 2022, and 6 December 2022 as set out in the preceding paragraphs. Indeed, pursuant to the Scott Road Property LOI, NPS paid an initial deposit amount of $836,851.20 and that LOI obliged NPS to negotiate “in good faith” the tenancy agreement for that property. ¹³⁷ If NPS thereafter obtained the Regulatory Approvals for the Merchant Road Property, it would have found itself under conflicting obligations to negotiate in good faith tenancy agreements for two properties, when it would only lease one. That would put in jeopardy either of the deposits it had paid.

136 In particular, if after NPS entered into the Scotts Road LOI, it pursued and obtained the Regulatory Approvals for the Merchant Road Property and then proceeded with the Merchant Road Property instead of the Scotts Road Property, it would stand to lose the initial deposit amount it had paid pursuant to the Scotts Road Property LOI.

137 On its part, Raffles did not know what NPS had been doing in relation to the Scotts Road Property. Raffles reached out to the Land Transport Authority (“LTA”) in late November 2022 and met with LTA on 8 December 2022 (by which time NPS had already entered into the Scotts Road Property LOI on 6 December 2022). ¹³⁸

138 Following that meeting, Raffles’s Mr Chew emailed LTA’s chief executive officer Mr Ng Lang to say: ¹³⁹

139 Raffles’s property agent informed NPS’s property agent by an email on 8 December 2022 that LTA had said it would reconsider the 4-Coach Guideline if the Merchant Road Property were used for NPS’s secondary school operations and there was “clarification of the students’ usage of public transport”. ¹⁴⁰ In this regard, today NPS is using the Hillside Property for its primary school and the Scotts Road Property for its secondary school – if NPS has leased the Merchant Road Property instead of the Scotts Road Property, it could likewise have used the Merchant Road Property for its secondary school.

140 The 4-Coach Guideline was something that LTA could waive:

(a) LTA’s Code of Practice for Vehicle Parking Provision in Development Proposals, states at [1.9] that “LTA has the discretion to review the parking provision for a development, below the lower bound [ie, the 4-Coach Guideline] if it is satisfied that it is technically and physically impossible to make full parking provision; ¹⁴¹

(b) FFW’s Mr Lin accepted that the 4-Coach Guideline “can be waived by the LTA”, ¹⁴² and “it is not [a] strict requirement” ¹⁴³ ; “ultimately [the authorities] just want to be sure that no traffic congestion issues will be created”; ¹⁴⁴

(c) Mr Lin specifically accepted that the 4-Coach Guideline “should not be an issue [for the Merchant Road Property] because Raffles is operating a commercial school which also require four coach parking lots but it did not have those coach parking lots”; ¹⁴⁵ and

(d) Mr Lin stated in his AEIC that “in the course of [his] work with FFW, [he] had previously been successful in obtaining similar COU approval from URA for other FSSs where the property in question did not have its own pick-up or drop-off point within its boundaries”, such as Kindle Kids International School. ¹⁴⁶

141 NPS, however, did not pursue an appeal with LTA regarding the Merchant Road Property. This is not surprising, given that it had already obtained approval for the Scotts Road Property, and entered into an LOI for that property.

142 It is thus not a valid excuse for Mr Bala to say that “[a]ny appeal or further attempt to obtain COU approval was ... doomed to fail” as “even if NPSIS only operated the secondary school at the Property, the [4-Coach Guideline] could not be complied with”. ¹⁴⁷

143 A consideration of the events after the RA Dateline of 28 September 2022 did not change my conclusion that NPS had failed to promptly apply for the Regulatory Approvals, and that it had failed to use best endeavours to obtain the Regulatory Approvals.

144 Paragraph 3 of the LOI provided that “[c]opies of the Tenant’s applications for Regulatory Approvals are to be furnished to the Landlord as soon as practicable after they have been submitted.” ¹⁴⁸ NPS failed to meet this obligation, as demonstrated by Annex B to Raffles’s closing submissions – a list of the documents relating to NPS’s applications for the Regulatory Approvals, and when they were furnished to Raffles.

145 To determine whether NPS had breached this obligation, I focused on the applications for Regulatory Approvals made up to the RA Dateline of 28 September 2022 (as the premise of para 3 of the LOI is the obtaining of the Regulatory Approvals by that date). Put simply, for the applications for Regulatory Approvals made up to the RA Dateline, NPS was obliged to furnish them to Raffles “as soon as practicable after they have been submitted”.

146 In the event:

(a) Raffles only obtained a copy of NPS’s 30 August 2022 COU application in the course of these court proceedings (by way of Mr Bala’s first affidavit) ¹⁴⁹ ; and

(b) URA’s decision of 26 September 2022, and the 27 September 2022 transport plan, were only furnished to Raffles on 30 September 2022, when the RA Dateline had already passed. ¹⁵⁰

147 In so far as NPS’s conduct after the RA Dateline is relevant, NPS continued to not provide Raffles with copies of its submissions “as soon as practicable after they have been submitted”.

148 In particular:

(a) Raffles only received copies of the 3 October 2022 and 13 October 2022 transport plans in the course of these court proceedings (by way of Mr Bala’s first affidavit) ¹⁵¹ ;

(b) Raffles was only told of the 27 October 2022 transport plan on 24 November 2022, ¹⁵² and only received a copy of the plan on 8 December 2022; ¹⁵³

(c) Raffles only received a copy of the 16 November 2022 transport plan in the course of these court proceedings (by way of Mr Bala’s first affidavit). ¹⁵⁴

149 Consequently, Raffles was under the impression – through October and until late November 2022 – that the transport plan under consideration was the 27 September 2022 one, when that was not so from the time Raffles varied the 27 September 2022 transport plan by the transport plans submitted on 3 October 2022 and thereafter.

150 NPS’s argument that the 30 August 2022 COU application (which Raffles only obtained in the course of these proceedings) did not contain “material information relevant to the reasons for URA’s rejection” ¹⁵⁵ does not excuse its breach of the obligation to provide Raffles with copies of such submissions “as soon as practicable after they have been submitted”. The consequence of such a breach is a matter for the next phase of this case.

151 NPS’s contention that it provided Raffles with a copy of the 27 September 2022 COU application “mere days after submission” ¹⁵⁶ rings hollow as that (and URA’s 26 September 2022 rejection of the 30 August 2022 COU application, which prompted the 27 September 2022 submission) was only provided to Raffles on 30 September 2022, after the RA Dateline. Raffles obviously could not do anything by the RA Dateline with documents it only obtained after the RA Dateline. There is no good reason why NPS could not have provided Raffles with copies of URA’s rejection of 26 September 2022 when that was received, and NPS’s submission of 27 September 2022 when that was submitted.

152 To decide whether NPS was entitled to a return of the Initial Deposit Amount, it was necessary to decide if the Regulatory Approvals had not been obtained by the RA Dateline due to NPS’s default. The trial of the matter had broadly been divided into liability and quantum phases, but to be more precise:

(a) NPS’s application for bifurcation by HC/SUM 1728/2024 was, by consent, granted on 14 November 2024. An Annex to that application set out the broad issues to be determined in the first (liability) tranche, including:

(i) whether NPS had promptly applied for Regulatory Approvals and used best endeavours to expeditiously obtain those approvals;

(ii) whether Raffles is liable to account to NPS for the Initial Deposit Amount;

(iii) whether the LOI or any part thereof is valid and binding on the parties; and

(iv) if the LOI (or part thereof) is binding, whether Raffles is liable to return the Initial Deposit Amount to NPS pursuant to para 11 of the LOI.

(b) In their lead counsel statements, the parties then set out an agreed list of issues, including:

(i) Legal issue 1: whether the LOI comprises a binding contract between NPS and Raffles, and/or contains obligations which were binding on the parties;

(ii) Legal issue 3: assuming the relevant LOI obligations are binding, whether NPS breached its obligations under para 3 of the LOI to promptly apply for Regulatory Approvals, and use best endeavours to expeditiously obtain those approvals; and

(iii) Legal issue 4: whether NPS is entitled to a return of the Initial Deposit Amount either due to a total failure of consideration and/or basis such that it would be unjust for Raffles to retain the benefit of the Initial Deposit Amount, or pursuant to para 11 of the LOI. ¹⁵⁷

(c) By correspondence dated 17 and 18 March 2026, the parties confirmed through their lawyers that, subject to certain exceptions, all the issues in the agreed list of issues were to be dealt with in the first tranche (which included the issue of whether NPS was entitled to a return of the Initial Deposit Amount pursuant to para 11 of the LOI). ¹⁵⁸

153 I thus determined in the first (liability) phase whether NPS was entitled to a return of the Initial Deposit Amount pursuant to para 11 of the LOI, and to that end, whether the failure to obtain the Regulatory Approvals by the RA Dateline was due to NPS’s default – if so, NPS would not be entitled to a return of the Initial Deposit Amount.

154 I found that the failure to obtain the Regulatory Approvals by the RA Dateline of 28 September 2022 was due to NPS’s default.

155 NPS had breached its obligations to promptly apply for the Regulatory Approvals, and to use best endeavours to expeditiously obtain those approvals.

156 It was only on Friday, 26 August 2022, that NPS appointed FFW for the making of a COU application, and that application was submitted two working days later, on Tuesday, 30 August 2022. ¹⁵⁹ Had NPS appointed FFW on Wednesday, 3 August 2022 (when Raffles counter-signed the LOI), the COU application would have been submitted by Friday, 5 August 2022 (two working days later), or by Monday, 8 August 2022, at the latest.

157 As noted above at [99]–[100], NPS should have provided with its COU application the information which URA had earlier sought in relation to the Scotts Road Property, and a transport plan. Instead, NPS lost a further nine days by waiting for URA to raise queries on 6 September 2022 and then responding on 8 September 2022.

158 By making a late, and incomplete, COU application, NPS thus wasted some 31–33 days, more than four of the eight weeks within which NPS was obliged to obtain the Regulatory Approvals.

159 In the event, NPS’s resubmission on 27 September 2022 with an accompanying transport plan (as varied on 3 October 2022 and 13 October 2022) ¹⁶⁰ was considered by the authorities at a meeting on 14 October 2022, ¹⁶¹ 16 days after the RA Dateline.

160 The 27 September 2022 transport plan would likely have been approved by the authorities, ¹⁶² but it was varied by the 3 October 2022 and 13 October 2022 transport plans prior to the 14 October 2022 meeting.

161 NPS ought to have submitted a transport plan (like its 27 September 2022 transport plan) that would not involve traffic congestion on public roads in the area from the start, with its COU application.

162 If not for NPS’s delays, the meeting with the authorities would have taken place, and NPS’s COU application would have been approved (and thus the Regulatory Approvals obtained) before the RA Dateline. Expressed in the language of the LOI, the Regulatory Approvals were not obtained by the RA Dateline, but such failure to obtain the Regulatory Approvals by the RA Dateline was due to NPS’s default. In turn, that caused the negotiations on the terms of the tenancy agreement to fall through. As such, on the terms of para 11 of the LOI, NPS was not entitled to a return of the Initial Deposit Amount.

163 On 20 May 2026, I granted a declaration that the LOI was valid and binding, at least in relation to paras 3, 11 and 23 of the LOI; Raffles was also given liberty to apply for wider declarations.

164 On 29 May 2026, Raffles’s solicitors wrote to court to seek a further declaration that paras 5 and 10 of the LOI were likewise valid and binding.

165 On 16 June 2026, NPS’s solicitors responded to say that as the court’s decision of 20 May 2026 was under appeal (the appeal having been filed the same day, 16 June 2026), it was not necessary at that juncture to deal with Raffles’s application for further declarations. ¹⁶³

166 NPS also took the position that it was not necessary at that juncture to deal with Raffles’s application for permission to file a summons for directions for the assessment phase of the matter, consequential on the finding of liability (as that was under appeal). ¹⁶⁴ By this time, on 15 June 2026 (before NPS filed its appeal) Raffles had already been given permission to file that summons. Accordingly, Raffles duly filed its summons for directions for the assessment phase of the matter, HC/SUM 1948/2026, on 22 June 2026.

167 Both parties addressed these matters in further correspondence, and NPS also filed an affidavit on 13 July 2026. I then heard counsel on 14 July 2026, and my decision was conveyed by a letter from the court dated 21 July 2026.

168 I decided that NPS’s application for a further declaration should be addressed at this stage; it should not be deferred until after the pending appeal:

(a) First, the trial had, by consent in HC/ORC 3855/2026, been bifurcated on the basis that one of the issues to be addressed in the first (liability) phase of the trial was: whether the LOI or any part thereof is valid and binding on the parties. Moreover, the parties had expressly agreed that this was to be addressed in the first phase of the trial (see [152] above).

(b) Second, if the issue of whether any part of the LOI (other than paras 3, 11 and 23 – which I had already ruled on) were deferred until after the appeal, the later determination of that issue would be subject to another potential appeal, and that could lead to the eventual resolution of the matter being delayed.

169 I agreed with Raffles that the LOI was also valid and binding in relation to paras 5 and 10.

170 Paras 5 and 10 of the LOI provided as follows: ¹⁶⁵

171 I agreed with Raffles that para 5 of the LOI was valid and binding as:

(a) it contained the parties’ agreement on 1 October 2022 as the Date of Possession;

(b) the parties could mutually agree on another date, but unless they did, the Date of Possession would remain 1 October 2022; and

(c) further, the parties agreed that any alternative Date of Possession would “in any event” be “no later than 1 November 2022”. ¹⁶⁶

172 Pursuant to para 23 of the LOI, the parties were to negotiate in good faith to agree and finalise the terms of the tenancy agreement. However, the Date of Possession was already the subject of an agreement between them, from the time of the LOI – as set out in para 5.

173 In the commercial context of the matter, I found the parties intended para 5 of the LOI to be valid and binding. As Raffles was then using the Merchant Road Property, Raffles would have to take steps to vacate the Merchant Road Property and to get it into the necessary condition for possession to be given on 1 October 2022. It would not be feasible to wait till the Regulatory Approvals had been obtained, and the tenancy agreement agreed and finalised by the RA Dateline of 28 September 2022, and only then to take steps towards giving possession three days later – on 1 October 2022.

174 Paragraph 10 of the LOI fleshed out what needed to be done for handover. It provided that the “Handover Condition” was “As-is where-is along with all existing Furniture, Fixtures, Equipment (FFE)” and that Raffles was “to remove its personal possessions (e.g. mannequins, jewelry, artwork, display items, signage, etc), specialized workshop/ crafting equipment, branding and signages.” ¹⁶⁷

175 I thus considered that para 10 of the LOI too was valid and binding.

176 NPS contended that para 10 of the LOI was an unenforceable agreement to agree in that it provided: “Inventory list to form part of Tenancy Agreement. Landlord and Tenant shall mutually agree on the items to be listed in the Inventory list.” ¹⁶⁸

177 This must, however, be viewed in conjunction with para 23 of the LOI. Paragraph 10 of the LOI expressly provided that the inventory list was to form part of the Tenancy Agreement. Paragraph 23 of the LOI obliged the parties to “negotiate in good faith to agree and finalise the terms of the Tenancy Agreement…before the expiry of the RA Dateline”. ¹⁶⁹ It follows that the reference in para 10 of the LOI to the parties “mutually agree[ing]” on the inventory list was part of the obligation under para 23 of the LOI to “negotiate in good faith”.

178 For completeness, I also decided that directions for the assessment phase should be given at this stage, rather than to be deferred until after the pending appeal against my decision on the liability phase.

179 The general rule (which NPS accepted) is that an appeal does not operate as a stay of execution, and I considered that the case management considerations NPS had put forward did not displace this.

180 I thus granted Raffles an order in terms of prayers 1 and 2 of HC/SUM 1948/2026 (Raffles’s summons for directions for the assessment phase), adding – for the avoidance of doubt – that the parties were not precluded from seeking to vary the directions given.

181 By AD/OA 32/2026, NPS applied for permission to appeal against my decision in relation to directions for the assessment phase. On 22 September 2026, that application was dismissed by the Appellate Division. As such, I do not elaborate on this aspect of the matter.

182 For the above reasons, on 20 May 2026 I dismissed NPS’s claim for a return of the Initial Deposit Amount, and granted Raffles’s counterclaim in the manner set out at [11] above; and on 21 July 2026, I granted a further declaration that the LOI was valid and binding in relation to paras 5 and 10 as well.