1 This was an appeal against the decision of the High Court judge (“the Judge”) in Ma Hongjin v SCP Holdings Pte Ltd and another [2019] SGHC 277 (“the GD”). The entire appeal centred on various aspects and/or applications of the doctrine of consideration. We dismissed the appeal and now give the detailed grounds for our decision.

2 Amongst all the doctrines of the common law of contract in the Commonwealth, perhaps the most academic ink has been spilt on the doctrine of consideration. Yet, modern cases at least that involve the invocation of the doctrine are few and far between. This is one of the rare decisions in the Singapore context; the last major decision, the decision of this court in Gay Choon Ing v Loh Sze Ti Terence Peter and another appeal [2009] 2 SLR(R) 332 (“Gay Choon Ing”), was handed down over a decade ago. Viewed from a practical perspective, this is not surprising. As we shall see, the existing case law renders it relatively easy to demonstrate the presence of valid or sufficient consideration in practice. On an academic level, though, it is understandable why there is a continued fascination with the doctrine. Its historical roots continue to remain obscure (for a very perceptive and recent essay from historical as well as comparative points of view, see Susan Kiefel, “The Doctrine of Consideration in Contract: Some Historical and Comparative Perspectives” in Contract in Commercial Law (Simone Degeling, James Edelman and James Goudkamp gen eds) (Lawbook Co, 2016) (“Contract in Commercial Law”) at Ch 4), and its very existence continues to be a topic of fascination amongst legal academics – particularly whether it ought to be superseded by other contractual doctrines. Significantly, though, the burgeoning literature on the doctrine has brought us no nearer to a solution on an academic level. For this reason alone, it is inadvisable for courts to enter the various debates (interesting though they may be on the academic plane), particularly when the practical yield is so paltry. Indeed, this is the approach that this court adopted in Gay Choon Ing.

3 In Gay Choon Ing, this court decided that the doctrine of consideration continued to be part of the Singapore contractual landscape. That case related, on its facts, to the operation of the doctrine in so far as the formation of contracts was concerned. The present appeal raises, inter alia, a different issue as to whether the doctrine of consideration ought nevertheless to continue to operate in so far as the variation or modification of contracts is concerned (indeed, this was an additional argument which was not canvassed in the court below but which the appellant raised in the present appeal (and which itself raised a procedural question which will be dealt with below)).

4 Although the observations in Gay Choon Ing were general in nature and the case itself endorsed the leading decision of the English Court of Appeal in Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1 (“Williams”) (which confirmed the need for consideration in respect of the variation of an existing contract in a situation where it was sought by the promisee to enforce a promise to pay more, albeit in a more “dilute” form), given the fact that Gay Choon Ing related, strictly speaking, to the operation of the doctrine of consideration in relation to the formation (as opposed to a variation or modification) of the contract concerned, it could be argued that the issue as to whether consideration is required for the variation or modification of an existing contract has not been (at least wholly) foreclosed in the Singapore context. As we shall see, there is some case law and (not surprisingly) academic writing that suggests that the doctrine ought to be dispensed with in the latter situation, viz, the variation or modification of contracts. However, this would, inter alia, entail departing from not only Williams but also the longstanding House of Lords decision in Foakes v Beer (1884) 9 App Cas 605 (“Foakes”) (which held that consideration was required in a situation where it was sought by the promisee to enforce a promise to take less). We will touch briefly on this particular legal issue below.

5 In addition to the issue of the doctrine of consideration in the context of the variation or modification of contracts, there was also a procedural issue in the court below that centred on the relevant test to apply upon a submission of no case to answer. That procedure and substance have an integrated and symbiotic relationship with each other cannot be denied (see the decision of the Singapore High Court in United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd [2005] 2 SLR(R) 425, especially at [8]). Although this particular issue was not raised in the present appeal, we will nevertheless make some observations on it as it has general significance beyond this case.

6 So much by way of preliminary observations. Let us now turn to the background and the decision of the court below.

7 The appellant in this appeal, Mdm Ma Hongjin, is an investor. The respondent, SCP Holdings Pte Ltd, is an investment holding company, and the ultimate holding company of a group of companies known as the Biomax Group. The respondent owns and controls Biomax Holdings Pte Ltd (“Biomax Holdings”), which in turn owns and controls Biomax Technologies Pte Ltd (“Biomax Technologies”). Biomax Technologies was the second defendant in the trial below, but was not named as a party to the appeal.

8 The dispute between the parties arose out of a convertible loan of S$5m extended by the appellant to the respondent pursuant to a Convertible Loan Agreement (“the CLA”) dated 6 January 2015. While the appellant was the investor on record, the CLA was negotiated by Mr Han Jianpeng (“Mr Han”), the appellant’s husband, and Mr Sim Eng Tong (“Mr Sim”), the controlling shareholder of the respondent.

9 Under cl 3 of the CLA, the S$5m loan was extended for a period of two years. In return, the respondent would have to pay interest at the rate of 10% per annum. The interest was to be paid in two instalments: the first interest payment of S$500,000 was due on 5 January 2016 and the second interest payment of the same amount was due on 5 January 2017 together with repayment of the principal, making a total of S$5.5m payable on that date. Additionally, the appellant was granted an option to require the respondent to procure a transfer of 15% of the shares in Biomax Holdings to her in lieu of paying the sum of S$5.5m due on 5 January 2017.

10 Although the CLA provided that the whole of the loan amount (ie, S$5m) was to be disbursed on the date of the CLA (see cl 2.2), the sum of S$5m was in fact disbursed to the respondent in three tranches on the following dates:

(a) S$2.5m on 6 January 2015;

(b) S$1m on 14 January 2015; and

(c) S$1.5m on 30 March 2015.

11 Within two months of entering into the CLA, the appellant and Mr Han became unhappy with the respondent’s financial results. This caused Mr Han to re-negotiate some of the terms of the CLA with Mr Sim sometime in March 2015. This resulted in the appellant and the respondent entering into the “Supplemental Agreement relating to a S$5,000,000 Convertible Loan Agreement Dated 6 January 2015” (“the SA”) on 16 April 2015. The two recitals to the SA provided that it was “supplemental to” the CLA, and that the appellant had agreed to amend the CLA to the extent set out in the SA at the respondent’s request.

12 The SA essentially imposed additional obligations on the respondent by stipulating several amendments to the CLA. First, the proportion of Biomax Holdings shares in respect of which the appellant could exercise a call option on 5 January 2017 increased from 15% to 20%. Second, the SA imposed an additional “lump sum facility fee” of S$250,000 to be paid on the same day as the first interest payment (ie, 5 January 2016). These amendments were to take effect on 16 April 2015. Notably, the appellant did not assume any additional obligations to the respondent under the terms of the SA.

13 There were a number of other transactions which the appellant was involved in which were of relevance to the appeal. Shortly after entering into the SA on 16 April 2015, the appellant entered into a Share Investment Agreement with Biomax Technologies (“the SIA”) under which she agreed to extend a loan of not more than S$5m to Biomax Technologies for the purpose of setting up a recycling plant, though the loan facility under the SIA was eventually not disbursed. The appellant also separately extended a number of loans totalling S$6m to Biomax Technologies between June and October 2015 (“the June to October 2015 loan agreements”). Of these, only S$1m was eventually repaid by Biomax Technologies to the appellant.

14 In January 2016, the respondent made payment of S$500,000 but neglected to pay the S$250,000 facility fee which was provided for under the SA. The appellant thus commenced proceedings in Suit No 765 of 2016 (from which the present appeal arose) to obtain payment of the facility fee from the respondent and repayment of the outstanding loans and interest from Biomax Technologies.

15 Two further points bear mentioning before we turn to the Judge’s decision. First, there was no appeal against the Judge’s decision in respect of the appellant’s claims against Biomax Technologies. Second, the appellant had commenced a separate suit against the respondent following its failure to repay the sum of S$5.5m due on 5 January 2017. These points were irrelevant to the present appeal and thus do not feature any further in these grounds.

16 Although the respondent had initially pleaded a number of defences against the appellant’s claim for the unpaid facility fee, it chose to abandon all defences prior to the trial save one – that the SA was unsupported by consideration and was therefore unenforceable. The respondent also advanced the technical argument that the appellant had failed to state in her pleadings that the SA was supported by consideration. As against this, the appellant made three arguments: (a) first, the SA and CLA were part of “one and the same contract”, and cl 9.3 of the CLA dispensed with the need for consideration for contractual variation; (b) second, the CLA and the SA should be treated as part of the same transaction with the disbursement of the loans under the CLA (both before and around the time that the SA was entered into) being consideration for the respondent’s agreement to pay the facility fee; and (c) third, that consideration was furnished by way of a factual or practical benefit in the form of goodwill from the appellant for future loans to the respondent or any of its related entities. Following the close of the appellant’s case in the proceedings below, the respondent made a submission of no case to answer coupled with the usual election not to call evidence if the submission failed.

17 The Judge found that the SA was unenforceable as it was not supported by consideration. The Judge first considered the appropriate test to apply in civil cases following a defendant’s submission of no case to answer. The Judge rejected the appellant’s submission that she only had to prove a prima facie case in order to succeed on her claim, finding instead that she had to prove her case on a balance of probabilities. The Judge reasoned that, following the decision of this court in Ho Yew Kong v Sakae Holdings Ltd and other appeals and other matters [2018] 2 SLR 333 (“Ho Yew Kong”), a defendant who elects to make a submission of no case to answer must make an accompanying election not to call evidence in the event that submission fails. As a result, there was no justification for a different standard of proof to apply in a situation where a defendant makes a submission of no case to answer as compared to one where that same defendant does not make such a submission but simply elects to call no evidence. In arriving at this decision, the Judge considered that the decision of the Singapore High Court in Central Bank of India v Bansal Hemant Govinprasad and others and other actions [2002] 1 SLR(R) 22 (“Central Bank of India”) did not stand for the proposition that a submission of no case to answer would fail if the plaintiff was able to prove a prima facie case. The Judge also took the view that this court’s decisions in Tan Juay Pah v Kimly Construction Pte Ltd and others [2012] 2 SLR 549 (“Tan Juay Pah”) and Lena Leowardi v Yeap Cheen Soo [2015] 1 SLR 581 (“Lena Leowardi”) did not stand for the proposition that a plaintiff need only prove a prima facie case upon a submission of no case to answer, and that any statements to that effect were obiter dicta.

18 Turning to the consideration issue, the Judge found that he was bound by the decision of this court in Gay Choon Ing ([2] supra) and that consideration was necessary for contractual variation. While the Judge found that the appellant had failed to adequately plead in her reply that the SA was supported by consideration in response to the respondent’s defence that the SA was “void for lack of consideration”, he considered that this did not cause any real prejudice to the respondent, preferring instead to decide the point based on whether consideration had been furnished for the SA. In this respect, the Judge rejected the arguments raised by the appellant and found that the SA was a free-standing agreement for which no consideration had been provided. First, cl 9.3 of the CLA did not allow for the contract to be varied without consideration. The decision of the Singapore High Court in Benlen Pte Ltd v Authentic Builder Pte Ltd [2018] SGHC 61 (“Benlen”) cited by the appellant was distinguished on the basis that the clause considered therein was materially different. Second, the CLA and SA could not be construed as being part of a single transaction. Even on the appellant’s case, she and Mr Han did not contemplate the SA when she first entered into the CLA with the respondent. Rather, the SA was an attempt to reopen a concluded bargain and improve the appellant’s position. This distinguished the facts of the case from the decision of this court in Rainforest Trading Ltd and another v State Bank of India Singapore [2012] 2 SLR 713 (“Rainforest Trading”). Third, the SA was not supported by consideration in the form of a factual or practical benefit to the respondent. There was no evidence that the parties had engaged in negotiations and reached an in-principle agreement on the terms of the SA prior to the disbursement of the third tranche of the loan on 30 March 2015. In any event, there was no evidence that the respondent gained some benefit from the appellant’s disbursement of the third tranche of the loan under the CLA which was extrinsic to the disbursement and would bring the case within the principle in Williams ([4] supra). There was also no consideration in the form of goodwill to Mr Sim and his companies for future loans as there was no evidence that any goodwill shown by the appellant was causally connected to the respondent’s entering into the SA.

19 The appellant did not dispute the Judge’s findings on the appropriate legal test to be applied upon a defendant’s submission of no case to answer. The appellant relied on many of the same arguments that were raised before the Judge. First, the appellant argued that cl 9.3 of the CLA dispensed with the need for fresh consideration for a variation of the CLA. Second, the appellant submitted that consideration had been furnished for the SA by way of a factual and/or practical benefit. The appellant also sought leave to argue that Gay Choon Ing should be overruled at least in part – to the extent that consideration would not be required in the case of contractual variation.

20 The respondent’s main contention was that the Judge ought to have rejected the appellant’s case at the outset due to her failure to plead that the SA was supported by consideration. The respondent also argued that the Judge was correct in rejecting the appellant’s arguments that the SA was supported by consideration. Regarding the appellant’s application for leave to argue that Gay Choon Ing should be overruled in so far as contractual variation was concerned, the respondent took the position that the appellant should be precluded from doing so, and that in any event, the doctrine of consideration should be retained for contractual variations.

21 The following issues are addressed in these grounds:

(a) first, what is the test to be applied upon a submission of no case to answer by a defendant (“Issue 1”);

(b) second, whether the appellant had adequately pleaded that the SA was supported by consideration (“Issue 2”);

(c) third, whether cl 9.3 of the CLA dispensed with the need for fresh consideration for a variation of the CLA (“Issue 3”);

(d) fourth, whether the appellant had furnished consideration for the SA by way of a factual and/or practical benefit (“Issue 4”); and

(e) fifth, whether the requirement for consideration should be dispensed with for contractual variations (“Issue 5”).

22 As alluded to above, this particular issue (relating to the applicable test to be applied upon a submission of no case to answer by a defendant) did not really arise in the present appeal. However, as it raises an important point of general importance, and sets the context for the rest of the present discussion, we will make some general observations for guidance in future cases.

23 In the court below, after the appellant had closed her case (as the plaintiff), counsel for the respondent (the defendant) made a submission of no case to answer, coupled with the usual election not to call evidence if the submission failed (such election being obligatory pursuant to the rule laid down by this court in Ho Yew Kong ([17] supra) at [70]). As we shall see, this obligatory election is a matter (or factor, rather) of the first importance.

24 It is important, in the first instance, however, to note that, under general law, the plaintiff bears the legal burden of proving its case against the defendant in a civil case on a balance of probabilities.

25 However, in the situation where the defendant has made a submission of no case to answer, local case law suggests that the plaintiff need only satisfy the court that there is a prima facie case on each of the essential elements of the claim in order to defeat the defendant’s submission of no case to answer and secure judgment in its favour (see, for example, Central Bank of India ([17] supra) at [21] as well as the decisions of this court in Tan Juay Pah ([17] supra) at [37] and Lena Leowardi ([17] supra) at [24]).

26 It might, at first blush, therefore, appear that in a situation where the defendant has made a submission of no case to answer, the standard of proof is different and this was indeed the view that the Judge took in the court below. He was therefore of the view that he had to choose one standard over the other (and chose the former, viz, proof on a balance of probabilities). However, on closer analysis, this is not the case and the Judge was, with respect, mistaken in thinking he had to make a choice when, in fact, none was required. Let us elaborate.

27 The starting point in our analysis is the concept of the legal burden. A plaintiff in a civil claim bears the legal burden of proving the existence of any relevant fact necessary to make out its claim on a balance of probabilities (assuming, of course, that the defendant cannot prove any applicable defences). This flows from the Evidence Act (Cap 97, 1997 Rev Ed) (“the EA”), and in particular s 103, which requires that a person desiring a court to give judgment as to any legal right or liability dependent on the existence of facts prove that those facts exist. Though the EA does not, on its face, distinguish between the civil and criminal burdens of proof, it has long been established that the legislation retains the traditional common law distinction between the two (see the decision of the Judicial Committee of the Privy Council (on appeal from the Federal Court of Malaysia) in Public Prosecutor v P Yuvaraj [1970] AC 913 at 920H–921B). Although there has been, on occasion, controversy over the possible existence of a third standard of proof, this court’s decision in Tang Yoke Kheng (trading as Niklex Supply Co) v Lek Benedict and others [2005] 3 SLR(R) 263 at [14] clarified that there are only two such standards of proof – proof on the balance of probabilities for civil cases and proof beyond a reasonable doubt for criminal cases.

28 A closely related (though distinct) concept is that of the evidential burden (or tactical burden). This is borne by the person on whom the responsibility lies to “contradict, weaken or explain away the evidence that has been led” (see the decision of this court in Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR(R) 855 (“Britestone”) at [59]). While the legal burden is determined by considering the pleadings of the parties and determining the material facts relied on by the parties to establish the legal elements of a claim or defence, the evidential burden can shift between the parties based on the state of the evidence (see the decision of this court in Cooperatieve Centrale Raiffeisen-Boerenleenbank BA (trading as Rabobank International), Singapore Branch v Motorola Electronics Pte Ltd [2011] 2 SLR 63 at [30]–[31]).

29 The following passage from Britestone illustrates the operation of these concepts (at [60]):

30 Crucially, a party’s establishment of a prima facie case on a particular fact on which it bears the legal burden denotes the point at which the evidential burden will shift to the defendant. In the decision of this court in Anti-Corrosion Pte Ltd v Berger Paints Singapore Pte Ltd and another appeal [2012] 1 SLR 427, the issue was whether defects in paint supplied by a paint manufacturer caused discolouration on a building. The appellant’s evidence in that case was found to have demonstrated prima facie that the defective paint was likely the cause of the discolouration, which caused the evidential burden to shift to the respondent. As the respondent adduced no evidence on this point, it was found that the appellant had proven that the discolouration was more likely than not caused by defects in the paint (at [37]–[38]).

31 This, in our view, explains why the applicable test following a submission of no case to answer has been expressed as requiring the plaintiff to prove a prima facie case. Where a submission of no case to answer is coupled with an election not to call evidence (which is obligatory following Ho Yew Kong ([17] supra)), the establishment of a prima facie case on each of the relevant facts in issue essentially results in a finding that the plaintiff has proved those facts on a balance of probabilities. This is because, following the shifting of the evidential burden to the defendant, there is simply no evidence forthcoming from the defendant to disprove the plaintiff’s position or weaken it such that the court can return a finding that the fact in issue is either “disproved” or “not proved” within the meaning of s 3 of the EA (see the decision of this court in Loo Chay Sit v Loo Chay Loo, deceased [2010] 1 SLR 286 at [20]). Seen in this light, the distinction between a prima facie case on the one hand and proof on a balance of probabilities on the other does not mean, as the parties argued below, that the court applies a laxer standard of proof in the former.

32 In summary, the plaintiff does indeed bear the legal burden of proving its case against the defendant in a civil case on a balance of probabilities. Where the defendant has made a submission of no case to answer, this particular standard of proof is met or discharged by the plaintiff satisfying the court that there is a prima facie case on each of the essential elements of its claim. This is because in a situation where the defendant has made a submission of no case to answer, such a submission must (as we have already noted at [23] above) be coupled with an election not to call evidence (pursuant to the principle laid down in Ho Yew Kong), with the result being that if the plaintiff has established a prima facie case on the facts in issue (that are essential to its claim), this would essentially result in the court finding that the plaintiff has discharged its burden of proving the aforementioned facts on a balance of probabilities. This is due to the fact that, upon the plaintiff establishing a prima facie case with respect to the relevant facts in issue, the evidential burden will shift to the defendant. However, because the defendant has had (in the situation of a submission of no case to answer) to elect to call no evidence, it would be unable to adduce (any) evidence to either disprove the plaintiff’s position or weaken it such that the facts that the plaintiff relies upon are “not proved”. Put another way, where a defendant elects not to call any evidence upon making a submission of no case to answer, there is simply no contrary evidence from the defendant for the court to consider. The court is only left with the evidence of the plaintiff and if, on a prima facie basis, the evidence satisfies all the ingredients or essential elements of the cause of action, judgment will be entered against the defendant. Because there is simply no balancing exercise of evidence to speak of, it might appear somewhat anomalous to describe the plaintiff as having proven its case on a balance of probabilities. However, such an anomaly is more apparent than real – in such a situation (concerning a submission of no case to answer), provided that it can establish a prima facie case on the facts in issue (that are essential to its claim), the plaintiff has (simultaneously) proved its overall case on a balance of probabilities.

33 We therefore affirm that, in the situation where the defendant has submitted that it has no case to answer and has (as it legally must) also elected to call no evidence if it fails in this submission, the plaintiff would succeed if it can establish that it has a prima facie case on each of the essential elements of its claim. For the avoidance of doubt (and also for the reasons stated above), the plaintiff would (simultaneously) have necessarily proved its (overall) case against the defendant on a balance of probabilities.

34 Although this particular issue relates to the doctrine of consideration, it concerns, in fact, a preliminary procedural point in relation to pleadings (or, in the respondent’s view, an absence thereof). The position taken by the respondent was that the appellant’s case should have failed ab initio owing to her failure to plead that the SA was supported by consideration. As against this, the appellant contended that the respondent had not suffered any prejudice from any failure on her part to plead that the SA was supported by consideration. According to the appellant, her reply and defence to counterclaim contained a blanket denial of para 6 of the defence and counterclaim, which contained the respondent’s averments as to the lack of consideration for the SA, and the respondent had notice of the appellant’s arguments from the time of her opening statement. Yet, the respondent still failed to challenge the appellant’s reliance on unpleaded particulars at trial.

35 We agreed with the decision of the Judge that the appellant should be permitted to raise her arguments on consideration notwithstanding the fact that they might have been unpleaded. The purpose of pleadings is to ensure that each party was aware of the respective arguments against it and that neither was therefore taken by surprise (see the decision of this court in Liberty Sky Investments Ltd v Aesthetic Medical Partners Pte Ltd and other appeals and another matter [2020] 1 SLR 606 at [15]–[16]). We noted that there appeared to be some reference in the appellant’s pleadings to the fact that the SA had dispensed with the need for consideration. In the appellant’s reply and defence to counterclaim dated 29 August 2016, it was stated that “the [SA] was executed as a valid and binding amendment to the CLA pursuant to Clause 9.3 of the CLA”, which would cohere with the appellant’s argument that cl 9.3 of the CLA dispensed with the need for consideration for contractual variation. While the remaining arguments relied on by the appellant were not particularised in her pleadings (apart from the blanket denial mentioned above at [34]), we found that the respondent had not been caught by surprise by these arguments and crucially, we did not think that they caused any prejudice to the respondent. The respondent was unable to particularise any prejudice which it had suffered in its case, other than to claim there ought to be stricter adherence to the requirements of pleadings where a defendant has made a submission of no case to answer, and that it had been caught off-guard by the appellant’s reliance on an unpleaded point. Given the circumstances, we were of the view that this was a scenario where the appellant should be permitted to raise her arguments on consideration notwithstanding the fact that they might have been unpleaded as the respondent could be adequately compensated with costs (see the decisions of this court in OMG Holdings Pte Ltd v Pos Ad Sdn Bhd [2012] 4 SLR 231 at [18] and Sun Jin Engineering Pte Ltd v Hwang Jae Woo [2011] 2 SLR 196 at [20]).

36 There is no reason, in principle, why contracting parties cannot, by agreement, dispense with the doctrine of consideration with regard to the variation of that particular contract. Any contractual term to that effect would not only be part of the bargain between the parties but would also be one that is part of a contract, which, in its formation, was in fact supported by valid consideration in the eyes of the law to begin with. If, indeed, that particular contract had been formed without such valid consideration, then that contract (and, of course, all the terms contained therein) would not have been able to pass legal muster in the first place.

37 The former point (viz, that the court would be giving effect to the bargain between the parties) may appear to be consistent with the argument (considered below) that one should dispense with the requirement of consideration where a contract is varied because the parties are already in a cooperative venture where some give and take is required; as we shall see below, however, this assumption of a cooperative venture is not necessarily always the case, but where the parties have in fact agreed to dispense with the doctrine of consideration in relation to the variation of their contract, it is implicit in such an agreement that they had crystallised that spirit of cooperation and (more importantly) given it concrete legal form (at least in so far as the issue of variation is concerned). This is, of course, quite different from a more general argument (or, rather, assumption) that the parties are necessarily (and therefore always) in a situation of cooperation as well as give and take simply by entering into a contract with each other; as we shall elaborate upon below, this need not necessarily be the case, especially where parties subsequently vary their contract as such variation can occur for a variety of reasons (not all of which are premised on a cooperative venture or an atmosphere of give and take).

38 Returning to the present case, the key question in the context of the present appeal in general and in relation to cl 9.3 in particular would therefore be whether the appellant and the respondent had intended that that clause dispense with the need or requirement for consideration if the CLA was varied – as was indeed in fact the case. At this juncture, the issue becomes one of contractual construction (here, of cl 9.3 of the CLA) – and it is to this issue that our attention now turns.

39 Clause 9.3 of the CLA reads as follows:

40 In our judgment, on an objective reading of the plain language of cl 9.3, it cannot be the case that the parties had dispensed with the need or requirement for consideration if the CLA was varied. As the Judge rightly stated, cl 9.3 merely prescribes signed writing as a minimum threshold for legally valid variation to occur. In other words, it provides for a necessary, but not necessarily sufficient, condition for validity of a subsequent variation of the contract.

41 The appellant attempted to liken her case to that of Benlen ([18] supra), where Chan Seng Onn J had held (albeit obiter) that the meaning of a particular clause of the relevant contract was that the parties had in fact agreed to dispense with the doctrine of consideration in relation to the variation of their contract. The clause in question read as follows:

42 In our view, the difference between the clause in Benlen and cl 9.3 of the CLA is at once clear. Clause 9.3 of the CLA cannot be construed to mean that the parties agreed that no fresh consideration would be required for subsequent variation, because of the reasons set out at [40] above. The clause in Benlen, however, can, as it provided that the contract “shall [ie, must] be varied or modified only with [ie, as long as there is] prior written consent from both parties”. We therefore rejected the appellant’s argument in this respect.

43 The appellant further argued that even if cl 9.3 of the CLA did not exhaustively provide for the requirements of a valid variation of contract, the parties nonetheless intended for the CLA to be varied or amended without the need for consideration. According to the appellant, any interpretation of cl 9.3 otherwise would result in “potentially absurd consequences”, as it would amount to an interpretation that parties had only intended that certain variations to the CLA would be binding even though the “only stated requirements” of cl 9.3 were complied with by the parties.

44 Despite claiming to be otherwise, this argument in reality hinged on the requirements in cl 9.3 being exhaustive – if complying with the “only stated requirements” of cl 9.3 did not result in a valid variation agreement being concluded, this would only be “absurd” if cl 9.3 provided for necessary and sufficient requirements in the first place. This was not the case, and we therefore dismissed this argument as well.

45  This particular issue relates to the question whether the appellant had, in any event, furnished fresh (and valid) consideration for the respondent’s promise which it now seeks to enforce. The appellant’s primary argument in this regard centred on the alleged “goodwill” which was said to constitute sufficient consideration within the meaning and scope set out in Williams ([4] supra). Specifically, the appellant alleged that the respondent gained her “goodwill” to provide future loans to the respondent or its related entities in return for her entry into the SA.

46 Before proceeding to consider this particular issue, however, a couple of preliminary observations are apposite.

47 First, the alleged consideration that has been sought to be furnished might be insufficient in the eyes of the law for at least three reasons. It might be the case that the alleged consideration, although contemporaneous with or otherwise causally connected with the promise that is sought to be enforced, is itself insufficient in the eyes of the law to begin with. It might also be the case that the alleged consideration, although otherwise sufficient in the eyes of the law, is not contemporaneous with or otherwise causally connected with the promise that is sought to be enforced – in which case it will be considered what has been termed past consideration that will also not pass legal muster. Finally, it might be the case that the alleged consideration is not only itself insufficient in the eyes of the law but is also past consideration in the manner just described. Much will, of course, depend on the precise facts and circumstances of the case.

48 Secondly, having referred to the concept of “causal connection” in the preceding paragraph, it should be noted that there may be different senses in which that concept might be used. One sense is, as we put it in Gay Choon Ing ([2] supra at [82]), that:

Another sense in which the concept of “causal connection” might be used occurs in relation to the so-called exception to the well-established principle that “past consideration is no consideration”. As this court observed (again, in Gay Choon Ing at [83]):

49 In the present case, the appellant argued that the Judge had erred in requiring a “common understanding” between the parties that the future loans would result from the respondent’s entry into the SA, because the phrase “common understanding” was taken from the judgment of Rainforest Trading ([18] supra) at [38], where the term was used in the context of past acts which validly constitute consideration for a later promise. According to the appellant, all that should be required is that the “practical benefit” had moved from the promisee to the promisor, and there is no requirement that there be a “common understanding” or “specific promise” that the benefit would accrue to the respondent at the time the promise was made. In the alternative, the appellant argued that it “could be inferred” that there was an “expectation of goodwill” to be granted to the respondent at the time the SA was entered into, and this sufficed as valid consideration.

50 To be clear, we noted that it was not the appellant’s case that consideration, by way of practical benefit or otherwise, was provided by the performance of the appellant’s existing contractual obligations under the CLA, and rightly so. Before the SA was entered into, all of the appellant’s obligations under the CLA had been performed, and the entire loan under the CLA had been disbursed. There was no evidence that the negotiations leading up to the conclusion of the SA took place before the third and final disbursement of the loan. The appellant’s pleaded action against the respondent was also founded on the SA, and not on any oral agreement that preceded the signing of the SA. These facts stand in stark contrast to those of Williams ([4] supra), which is a case where one party’s promise to perform an obligation which it was already contractually obligated to perform, but where performance had not yet been completed at the time of the contractual variation, was found to confer a practical benefit on the other party who promised an additional benefit under the variation agreement. Such was not the case here.

51 We also noted that it was not the appellant’s case that she had made a promise to enter into the SIA and the June to October 2015 loan agreements as consideration for the SA. This is for two reasons:

(a) Although the negotiations relating to the SIA occurred at about the same time as the negotiations for the SA, and the SIA was entered into on the same day as the SA (and the appellant’s case refers to these facts), the negotiations surrounding the SIA between Mr Han and Mr Sim were described by Mr Han as “entirely separate from the CLA and the re-negotiation of its terms leading up to the [SA]”. On appeal, the appellant admitted that the SIA and the CLA were “entirely separate contracts”.

(b) The appellant’s counsel confirmed, during oral submissions before us as well as in closing submissions before the court below, that the appellant was not making the argument that she had made a specific promise to extend the loans under the SIA to Biomax Technologies in exchange for the respondent assuming further obligations under the SA. Indeed, there was no evidence to such effect.

Instead, the appellant’s case was that “goodwill” had moved from herself to the respondent, and this alone constituted a sufficient nexus.

52 In our judgment, the appellant’s criticism of the Judge’s ruling failed to appreciate the different senses in which the concept of “causal connection” might be used. While the concept of a causal connection might have been used in Rainforest Trading in the second sense as described at [48] above, in the present case, it is the first sense which is relevant. On the facts of the present case, assuming that the alleged consideration is itself sufficient in the eyes of the law, the element of request necessary in order to establish a link between the parties was absent, as there was no request for any “goodwill” by the respondent leading to the conclusion of the SA. It is insufficient that the benefit the respondent conferred upon the appellant pursuant to the SA stirred up “goodwill” on the appellant’s part and of her own volition. In addition, we note that motive for making a promise does not in itself amount to consideration (see Chitty on Contracts (H G Beale gen ed) (Sweet & Maxwell, 33rd Ed, 2018) (“Chitty”) at para 4-011 and the oft-cited English decision of Thomas v Thomas (1842) 2 QB 851 (“Thomas”) at 859). The assertion that the respondent might have been motivated, in making its promise under the SA, by the prospect of obtaining “goodwill” from the appellant was therefore also insufficient to establish the appellant’s case in this regard.

53 In any event, the alleged consideration is insufficient in the eyes of the law to begin with. To the extent that “goodwill” referred to the improved relationship between the appellant and Sim and/or the respondent, we note the decision in Thomas (at 859) that there is no consideration for a promise made “in consideration of natural love and affection”, as such purported consideration bore no value in the eyes of the law. To the extent that “goodwill” referred to some increased likelihood that the appellant would extend future loans to the respondent or its related entities, we note the following extract from Chitty at para 4-025:

We agree. The present case might even be said to be one step removed from a discretionary promise, as there was never any promise regarding any future loans to begin with. In sum, the SA was not supported by valid consideration.

54 This particular issue relates to the new (and potentially far reaching) argument proffered by the appellant on appeal that the doctrine of consideration should, in any event, be dispensed with in cases concerning contractual variation or modification. However, as a preliminary point, we address the respondent’s objection to the effect that the appellant should not have been granted leave to make this new argument on appeal in the first place.

55 In Grace Electrical Engineering Pte Ltd v Te Deum Engineering Pte Ltd [2018] 1 SLR 76, this court held that applications by a party to raise new points on appeal (and in particular, points representing a substantial departure from the position taken by that party below) would be subject to careful consideration, with due regard being had to factors including the following (at [38]): (a) the nature of the parties’ arguments below; (b) whether the court had considered and provided any findings and reasoning in relation to the new point; (c) whether further submissions, evidence, or findings would have been necessitated had the new points been raised below; and (d) any prejudice that might result to the counterparty in the appeal if leave were granted.

56 The respondent contended that allowing the appellant to pursue this point on appeal would cause it to suffer prejudice. According to the respondent, it had chosen to abandon all its defences save the defence of no consideration because parties had accepted that the doctrine of consideration applied to contractual variations. However, the respondent failed to show that the parties’ agreement as to the applicable legal principles preceded its decision to rely only on the defence of no consideration. Indeed, it had decided to abandon all defences save the defence that the SA was unsupported by consideration on 19 January 2019, prior to the filing of opening statements for trial on 21 January 2019. It therefore appeared to us that the respondent had made the decision to abandon its other defences before the point at which it could have gained notice of any legal arguments that the appellant intended to rely on. More importantly, this argument was purely a legal one which did not require any new evidence to be adduced, which meant that this court would have been in just as advantageous a position as the court below to adjudicate upon the issue (see the decisions of this court in Ang Sin Hock v Khoo Eng Lim [2010] 3 SLR 179 at [63] and JWR Pte Ltd v Edmond Pereira Law Corp and another [2020] SGCA 68 at [29]). Accordingly, we were of the view that leave should be granted to the appellant to make the argument as to whether the doctrine of consideration should be dispensed with in cases concerning contractual variation.

57 Having dealt with the respondent’s preliminary objection, let us turn now to consider the appellant’s substantive argument that the doctrine of consideration should be dispensed with or abolished in so far as the variation of contracts is concerned.

58 In Gay Choon Ing ([2] supra), this court undertook (at [111]−[116]) a review of the possible alternatives were the doctrine of consideration to be abolished, and concluded as follows (at [117]−[118]):

59 As alluded to at the outset of the present judgment, after Gay Choon Ing academic ink continued to be spilt on the doctrine of consideration (see, for example (and by one of the staunchest supporters of the doctrine itself), Mindy Chen-Wishart, “Consideration and Serious Intention” [2009] Sing JLS 434 and, by the same author, “In Defence of Consideration” (2013) 13 OUCLJ 209 as well as “Reforming Consideration: No Greener Pastures” in Contract in Commercial Law at Ch 5 (and the legal literature cited therein); a useful and updated overview of the various issues may also be found in Jonathan Morgan, Great Debates in Contract Law (Red Globe Press, 3rd Ed, 2020) at Ch 2). With respect (and despite the interesting academic analyses), we are no nearer a solution that is at once both theoretically as well as practically viable and therefore see no reason to change the views we had expressed in Gay Choon Ing. However, could it be argued that that decision was concerned with the operation of the doctrine of consideration in the context of the formation of contracts whereas the present case relates to the operation of the doctrine in the context of the variation or modification of contracts (though cf the view of the Judge in the court below at [99] as well as in the decision of the Singapore High Court in S Pacific Resources Ltd v Tomolugen Holdings Ltd [2016] 3 SLR 1049, especially at [14]). As also alluded to at the outset of this judgment, it is argued in some case law as well as some academic commentary that, in so far as the variation or modification of contracts is concerned, the requirement of consideration may be dispensed with. And it is to those materials that our attention now turns – bearing in mind that the substance of the arguments concerned is what matters as well as the fact that accepting them would simultaneously entail a departure from decisions such as Williams ([4] supra) and Foakes ([4] supra).

60 With respect, none of the arguments in favour of the abolition of the doctrine of consideration in the context of the variation or modification of contracts is persuasive. Let us elaborate.

61 First, in Gay Choon Ing, we explained why it was most practically wise to maintain the status quo (viz, the availability of both the (somewhat dilute) doctrine of consideration as well as the alternative doctrines such as economic duress, undue influence, unconscionability as well as promissory estoppel and proprietary estoppel) inasmuch as such an approach would afford the courts a range of legal options to achieve a just and fair result in the case concerned (see also Lee Pey Woan, “Consideration” in The Law of Contract in Singapore (Academy Publishing, 2012) (“Consideration”) Ch 4 at para 04.109). Although Gay Choon Ing related to a situation regarding the formation of a contract, this is a general argument that would apply equally to situations relating to variation or modification of contracts (which is the situation in the present case).

62 Secondly (and on a related note), the difficulties with regard to the possible alternatives to the doctrine of consideration (which were referred to briefly in Gay Choon Ing ([2] supra)) do not appear to have been resolved despite the period of more than a decade since that particular decision was handed down. Indeed, in some instances, the difficulties appear to have either worsened or opportunities to resolve them have not been availed of by the court concerned. An example of the latter occurred in the decision of the Supreme Court of the United Kingdom in MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2019] AC 119, where the court managed (by holding that the variation agreement in question was invalid) to avoid having to deal directly with the issue of consideration in respect of that agreement – in particular, the status of the decision in Foakes in light of the development in Williams (which, at the English Court of Appeal level, was at odds with Re Selectmove Ltd [1995] 1 WLR 474 (this particular issue was in fact referred to in Gay Choon Ing at [102]–[103])). As one commentator interestingly observed, “[s]ince [Foakes] is a House of Lords decision, [its] re-examination can be performed only by the Supreme Court; but, with its having taken 134 years for this issue to finally reach our highest court, it is unclear when it will have another opportunity to do so” (see Robert Harris, “Modifications, Wrangles, and Bypassing” [2018] LMCLQ 441 at p 449).

63 Thirdly, and turning specifically to the issue of the variation or modification of a contract, it has been argued that the requirement of consideration may be unnecessary because, unlike the situation where parties enter into a contract (ie, a situation relating to the formation of a contract), the parties in the situation where a variation or modification occurs are already in a contractual relationship with each other (see, for example, Tan Cheng Han, “Contract Modifications, Consideration and Moral Hazard” (2005) 17 SAcLJ 566, especially at pp 578–580 and John Cartwright, Formation and Variation of Contracts (Sweet & Maxwell, 2nd Ed, 2018) (“Cartwright”) at para 9–24). Looked at in this light, the argument is that the parties who are already in a contractual relationship with each other are more likely to be flexible with each other in order to advance their common enterprise and that to therefore insist that any contractual variations or modifications require consideration may run counter to or militate against such an enterprise (and/or situations where one party might be willing to afford the other party a concession to cultivate a long-term relationship).

64 Whilst this is one possible perspective, it is not the only one. Parties enter into contracts for a myriad of reasons and may desire to vary or modify their contract for a myriad of reasons (not all of which might be as positive or sanguine as depicted in the scenario just considered). It is important to note at this juncture that a legal rule or principle is, ex hypothesi, normative in nature and is intended to be applicable universally, regardless of the precise factual scenario concerned. Hence, it ought to cover as many potential factual situations as possible. Given the myriad of factual permutations (including those that occur after the contract has been entered into), a change in the law (here, the dispensing with the requirement of consideration where the variation of contracts is concerned) would be consistent with only one basic scenario (where the parties in an existing contractual relationship are seeking to cooperate with each other). What, then, about the argument that there exist alternative legal doctrines which would nevertheless accommodate and deal with other scenarios where the parties are not so sanguine, thus addressing any injustice or unfairness that might result from the variation of the contract concerned? However, that merely brings us back full circle to a point that was already considered in Gay Choon Ing – that the alternative doctrines themselves contain specific difficulties that need to be ironed out and that including the doctrine of consideration as part of a range of legal options (in addition to these alternative legal doctrines) may well be the best (as well as most practical) way forward.

65 It should also be noted that, pursuant to Williams ([4] supra) (which is now part of the law relating to the doctrine of consideration in Singapore), it is no longer onerous to demonstrate that the requirement of consideration has been satisfied because any factual benefit or detriment would suffice in the eyes of the law. Looked at in this light, perhaps the suggested inconvenience to the parties might be somewhat exaggerated in a situation where all is well between them. Further, as just noted, the situation between parties may not always be so sanguine – in which case the requirement of consideration does indeed serve an important function.

66 We have also seen that if the parties are truly optimistic, they could exclude the requirement for consideration for the variation of the contract by unambiguously stating so at the point the contract is formed (see [36] above). And, of course, there would be no difficulty if the parties vary the term(s) of their contract by way of a deed.

67 Fourthly, the case law is – at best – inconclusive. We turn, first, to the New Zealand position. The leading decision in this regard is that of the Court of Appeal of New Zealand in Antons Trawling Co Ltd v Smith [2003] 2 NZLR 23 (“Antons Trawling”). However, a close reading of the judgment of the court in that case (which was delivered by Baragwanath J) will reveal that the court did, in fact, find (after a meticulous examination of the relevant facts) that the promisee had furnished sufficient consideration pursuant to the legal principles laid down in Williams. As the court observed (at [93]):

68 It is clear that whilst the court in Antons Trawling did entertain the possibility of dispensing with the requirement of consideration in the context of a variation of a contract (see the sentence italicised in bold italics in the quotation in the preceding paragraph), it did not reject the approach in Williams either; on the contrary, the last sentence of the aforementioned quotation makes it clear that the approach in Williams was also a ground upon which the court was prepared to premise its decision upon (reference may also be made to the recent decision of the New Zealand High Court in Gloria Jean’s Coffees International Pty Ltd and another v Daboko Ltd [2020] NZHC 29 (“Gloria Jean’s Coffees”) at [30]–[31] and [40]; cf another decision of the New Zealand High Court in Blair v Horne and others [2006] NZHC 195, especially at [38]–[39]). Indeed, as one commentator aptly observed, “[t]he status of Williams and the practical benefit test in New Zealand is now ambiguous” (see Karen N Scott, “From Sailors to Fisherman: Contractual Variation and the Abolition of the Pre-Existing Duty Rule in New Zealand” (2005) 11 Canterbury L Rev 201 (“Scott”) at p 214 (see also at p 215); reference may also be made to Brian Coote, “Variations Sans Consideration” (2011) 27 JCL 185 (“Coote”) at p 197 as well as Jeremy Finn, Stephen Todd & Matthew Barber, Burrows, Finn and Todd on the Law of Contract in New Zealand (LexisNexis NZ Limited, 6th Ed, 2018) (“Burrows, Finn and Todd”) at p 129). Indeed, Prof Scott also refers to a point that has already been raised above (at [64]) – which is that the alternative doctrine of economic duress may itself embody problems of its own (see Scott at pp 211−212; see also Craig Ulyatt, “The Demise of Consideration for Contract Variations” (2003) 9 Auckland U L Rev 1386 (“Ulyatt”) at p 1397) as might the other doctrines (such as undue influence and the doctrine of unconscionability (see Scott at pp 212−214)). It is also apposite to note that it has also been argued that the rationale for awarding damages for expectation loss can only be justified by requiring consideration to be demonstrated (see Ulyatt at p 1393).

69 It is also interesting to note that Baragwanath J, in arriving at the more radical proposition that consideration was not required in the context of contractual variation or modification in Antons Trawling, appeared to be heavily influenced by Prof Brian Coote’s critique of Williams ([4] supra) in “Consideration and Benefit in Fact and in Law” (1990) 3 JCL 23. In essence, in rejecting the approach centring on practical benefit or detriment as being an unprincipled way of achieving justice, Prof Coote concluded his critique by stating (at p 28, and presumably as a principled alternative) that “[t]heoretically, it may still be open to a court of final resort in a common law country to decide that consideration should not be necessary for the variation of a contract” (indeed, in a subsequent article already referred to above, Prof Coote opined that the court in Williams dispensed, “at least for all practical purposes”, with the requirement of consideration “by the use of a fiction” [emphasis added] (see Coote at p 197)). If, however, Williams is considered a principled approach, then there is no need to adopt the more radical alternative suggested by Prof Coote. At this juncture, it is perhaps apposite to pause to observe, parenthetically, that part of Prof Coote’s dissatisfaction with the approach in Williams might be attributed to the fact that – in contrast to the traditional approach in Stilk v Myrick (1809) 2 Camp 317 (“Stilk”) – recourse to a concept of factual benefit or detriment may be argued to lack normative force. Whilst this last-mentioned argument might be attractive at first blush, it neglects, with respect, the proposition that the court can indeed confer normative force on a test, the content of which might turn on a factual determination. Viewed in this light, the approach in Williams is no less a legal test (although, as just mentioned, its content might turn on a factual determination). Indeed, in the ordinary course of legal discourse as well as analysis, the legal principles are not enunciated for their own sake – they are intended to be applied to the relevant facts of a particular case. The approach in Williams embodies this although, by its very nature, the legal principles and the relevant facts are perhaps more inextricably connected and may – to that extent – be viewed as two (albeit different) sides of the same coin. This does not, of course, detract from the obvious point (which we also acknowledged in Gay Choon Ing ([2] supra) at [118]) that the approach in Williams results in “a somewhat dilute” doctrine of consideration – although, depending on the precise facts and circumstances of a particular case, the value of the practical benefit or detriment concerned may indeed be significant (see Pey-Woan Lee, “Contract Modifications – Reflections on Two Commonwealth Cases” (2012) 12 OUCLJ 189 (“Lee”) at p 196). As has also been pointed out on a related note, “a more straightforward explanation of [Williams] [may] lie in the recognition that a re-promise does confer additional value on the counter-party if the re-promise represents an increased chance of performance” [emphasis in original] (see Lee at p 197).

70 One might also usefully note the following observations by Baragwanath J in an extrajudicial paper delivered after he had retired from the bench (see David Baragwanath, “Judging: A Butterfly View” (2010) 16 Canterbury L Rev 243 at p 251):

With respect, the observations just quoted are ambiguous. Whilst on one reading, they suggest a more radical approach that dispenses with the requirement of consideration in the context of contractual variation or modification, the language emphasised suggests that the court in Antons Trawling had merely proceeded on the more traditional approach and had found that consideration had indeed been provided on the facts of that particular case. The reader will recall that a plain reading of the actual language of the judgment in Antons Trawling itself demonstrates a similar ambiguity (see [68] above).

71 In the subsequent New Zealand Court of Appeal decision of Teat v Willcocks [2014] 3 NZLR 129 (“Teat”), Arnold J, delivering the judgment of the court, observed as follows (at [54] (reference may also be made to Gloria Jean’s Coffees, especially at [32]; the decision of the High Court of New Zealand in New Zealand Local Authority Protection Disaster Fund v Auckland Council [2013] NZHC 1858 at [35]; and Burrows, Finn and Todd at pp 129–130)):

72 For completeness, we note that Antons Trawling ([67] supra) has been cited in a fair number of subsequent decisions of the New Zealand High Court (including those already referred to above). Woolford J, for example, cited and applied Antons Trawling in Goldsmith and others v Carter and others [2012] NZHC 1693, observing (at [34]) that “[i]n any event, I am of the view that consideration is not necessarily essential for the variation [of the contract] to be effective” [emphasis added]. Notably, there was no real discussion of the detailed reasons for endorsing such an approach, although this is perhaps understandable as Antons Trawling was a decision of the Court of Appeal. It should also be noted that sufficient consideration in law was found on the facts of the case (cf the phrase “in any event” in the observation just quoted) (reference may also be made to Hunan Holdings Ltd v Virionyx Corporation Ltd (2005) 2 NZCCLR 1079 at [45]–[51]). And in Mulholland v Hansen [2015] NZHC 895, whilst Teat was cited (at [25]), Muir J found, in fact, that there was no variation to begin with (reference may also be made to Shell (Petroleum Mining) Co Ltd and another v Vector Gas Contracts Ltd and another [2014] NZHC 31 at [128]–[132], Baxter v Coleman [2016] NZHC 2693 at [207]–[211] and Green v Carr [2018] NZHC 3408, especially at [38]; significantly, in all these decisions, no decisive or conclusive view on what the legal position ought to be is expressed (though cf Flight Park Tandems Ltd v Club Flying Kiwi Ltd (2005) 2 NZCCLR 508 at [75]–[76])). There are also decisions which prefer nevertheless to expressly adopt the more cautious (and traditional) view that consideration is required in the context of contractual variation or modification (see, for example, Northwest Developments Ltd v Xue [2019] NZHC 1042 at [30]). These are just a sampling of various decisions of the High Court of New Zealand that demonstrate that there has been no decisive or conclusive pronouncement that dispenses with the requirement of consideration in the context of contractual variation or modification and that, generally speaking, consideration continues to be a requirement in this particular regard. This is perhaps not surprising because, as we have seen (see especially [68] above), the decisions of the Court of Appeal of New Zealand in Antons Trawling and Teat did not themselves render a decisive or conclusive view that consideration was clearly no longer required in the context of contractual variation or modification.

73 To summarise, whilst the New Zealand courts have expressed support for the legal proposition that no consideration should be required in the context of contractual variation, the more liberal approach in Williams ([4] supra) that holds that sufficient consideration can be provided by way of a factual benefit or detriment has not been rejected; on the contrary, it still appears to be sound law as well (reference may also be made to Coote at p 193 as well as Burrows, Finn and Todd at pp 129–130).

74 Turning to the Canadian context, the leading decision appears to be that of the New Brunswick Court of Appeal in Greater Fredericton Airport Authority Inc v NAV Canada (2008) 290 DLR (4th) 405; [2008] NBJ No 108 (“NAV”), as cited by the appellant. The court in that case held, inter alia, that no enforceable contract had been entered into between the parties and that the respondent was therefore not liable to pay the appellant for the new equipment which the latter alleged that the former had promised to do. Interestingly, the court found that the promisee had furnished no consideration for the promisor’s promise and that the promisee had also established that it had been the victim of economic duress. These holdings ought to be borne in mind as we examine the detailed reasoning of the court (the judgment of the court was delivered by J T Robertson JA, and concurred with by W S Turnbull and M E L Larlee JJA). The judgment by Robertson JA is a comprehensive and scholarly one. His assessment of Williams in the context of the enforceability of post-contractual modifications or variations is not a positive one (at [28]). He is also critical of artificial attempts to locate consideration (at [29], where he states, inter alia, that he agrees with “Professor Waddams’ exhortation that courts should avoid ‘fictional’ attempts to find consideration”). Robertson JA also points to the fact that the doctrine of consideration was formulated “before the recognition of the modern and evolving doctrine of economic duress” (at [30]). He then concludes thus (at [31]):

75 Rather curiously, however (and with respect), the learned judge then proceeded to state as follows (at [32]):

76 A plain reading of the quotation in the preceding paragraph suggests that there might be an inconsistency (see also, in this regard, a similar view in Rick Bigwood, “Doctrinal Reform and Post-Contractual Modifications in New Brunswick: NAV Canada v. Greater Fredericton Airport Authority Inc.” (2010) 49 Can Bus LJ 256 (“Bigwood”) at p 266). In particular, it suggests that the doctrine of consideration is still alive and well, so to speak – and, in fact, may even retain its original legal form as set out in the seminal English decision of Stilk ([69] supra) (and, possibly at least, as modified later in Williams). However, a closer reading of the same quotation suggests that whether or not sufficient consideration has been furnished might merely be a factor in the decision of the court as to whether or not there was economic duress. At this particular juncture, however, one may ask whether, in a situation where there is indeed sufficient consideration in the eyes of the law, that would – in and of itself – suffice to render the contract concerned enforceable. It is, of course, true that the doctrine of economic duress could nevertheless be invoked by the promisor to argue that the contract is otherwise unenforceable. At this particular juncture, however, it should be noted that both consideration and economic duress are being invoked as separate and independent doctrines. In fairness, it should be noted that it is entirely possible to rely upon the doctrine of economic duress whilst having regard to consideration as a factor and this may well be what Robertson JA had in mind. However, there is no reason in principle why both doctrines (of consideration and economic duress) cannot potentially operate together as they are not mutually exclusive. Indeed, it could be argued that there could – in many situations at least – be a fine line between consideration as a doctrine on the one hand and consideration as a factor in determining whether there is economic duress on the other. This appears, in fact, to be implicit in the quotation in the preceding paragraph. There is also the further difficulty that consideration was apparently also endorsed in its doctrinal form (cf the reference to Stilk).

77 It is also noteworthy that, on the actual facts of NAV itself, the court found that there had been no fresh consideration furnished in law. It then proceeded to find that there had nevertheless been economic duress on the (same) facts (not least because the promisor made the promise concerned “under protest” and that this was what had happened in substance in any event) (at [64]–[66]). In doing so, the court applied the following approach which it had outlined earlier in its judgment (at [53]):

78 What is interesting is that, if the court in NAV ([74] supra) had adopted the traditional approach of requiring consideration in the context of a contractual variation, then it would have been able to arrive at the same result on the facts since it had found (as just noted) that no fresh consideration had been provided by the promisee to the promisor. Instead, in applying the approach that was quoted in the preceding paragraph, the court held (at [66]) that “[t]he fact that the promise was not supported by fresh consideration suggests that consent was lacking” (this was one of the factors that is in bold italics in the quotation at [75] above and also italicised in the quotation at [77] above).

79 Assuming, however, that Robertson JA’s view that consideration can be dispensed with in the context of contractual variation provided that there is no economic duress (a view that, not surprisingly, was endorsed in Coote (at pp 195–197)), there nevertheless remain, with respect, difficulties with such an approach which have already been set out above as well as below (and that also includes problems with economic duress as an alternative (see [68] above); and, on alternatives generally, see [61]–[62] above). These difficulties are significant ones which NAV does not, with respect, really address. We also note that a large part of the judgment in NAV itself was devoted to clarifying the applicable legal principles with respect to economic duress. That this exercise was itself not uncontroversial is demonstrated by the fact that the court in NAV rejected (at [47]–[50]) the criterion of illegitimate pressure and focused (at [51] and [53]) on the factor of whether there was a practical alternative instead. Given the fact that the criterion of illegitimate pressure has been traditionally accepted as a factor in both the case law as well as the textbooks demonstrates that the doctrine of economic duress is itself by no means free from difficulties (as already alluded to above). Indeed, a learned commentator delivered a powerful critique of the analytical framework for economic duress proposed in NAV (see Bigwood at pp 269–277; reference may also be made to Lee at pp 201–205). The court in NAV also explored (at [62]) the role of good faith on the part of the alleged coercer – an issue which, respectfully in our view, is one which has potential difficulties (particularly given the nature of good faith even as a doctrine, at least in the Singapore context (cf the decisions of this court in Ng Giap Hon v Westcomb Securities Pte Ltd and others [2009] 3 SLR(R) 518, especially at [47] and [51]–[60] and The One Suites Pte Ltd v Pacific Motor Credit (Pte) Ltd [2015] 3 SLR 695 at [44])). Finally (and on a more general level), the approach adopted by the court (see [77] above) was also somewhat different from that adopted in other jurisdictions (this is, of course, consistent with its rejection of the criterion of illegitimate pressure which has just been referred to).

80 In summary, there are difficulties with the proposition advanced in NAV that the courts can dispense with the requirement of consideration in the context of contractual variation provided that there is no economic duress. We have also seen that not a smidgen of ambiguity was introduced, as the court in NAV did not (unambiguously at least) reject the doctrine of consideration in relation to Stilk ([69] supra) as well as in relation to Williams ([4] supra). If such ambiguity is resolved by construing consideration as a factor (as opposed to a doctrine) in the context of the court’s determination as to whether there is economic duress, this still does not explain the abovementioned endorsement of consideration in its doctrinal form.

81 A subsequent decision was also cited by the appellant – that of the British Columbia Supreme Court in River Wind Ventures Ltd v British Columbia [2009] BCJ No 880; [2009] BCSC 589 (reversed, River Wind Ventures Ltd v British Columbia [2011] BCJ No 257; [2011] BCCA 79 (albeit without any apparent doubt being cast on the analysis of the law relating to consideration as such; remitted for assessment of damages in River Wind Ventures Ltd v British Columbia [2011] BCJ No 1678; [2011] BCSC 1195); see also British Columbia v River Wind Ventures Ltd [2011] SCCA No 179 (application for leave to appeal to the Supreme Court of Canada dismissed)). Whilst I C Meiklem J agreed (at [32]) with the reasoning of the court in NAV, the learned judge did note that the first sentence in [31] of NAV (as quoted at [74] above) might not have “fully capture[d] the modernized principle intended to be enunciated by the court”. It should also be noted that this particular decision did in fact also find that the plaintiff promisee had failed to establish that there had been fresh consideration furnished for the promise (at [36]).

82 Another decision in the Canadian context is that of the New Brunswick Court of Appeal in Harrity v Kennedy [2009] NBJ No 305; [2009] NBCA 60 (“Harrity”). As in NAV ([74] supra), Robertson JA once again delivered the judgment of the court (which was concurred with by J C M Richard and B R Bell JJA). Not surprisingly, perhaps, the learned judge cited NAV (at [27]). More interestingly, in the very next paragraph, Robertson JA observed as follows (at [28]):

83 Whilst the learned judge’s observations as quoted in the preceding paragraph are reminiscent of his views in NAV (at [29], see [74] above), what is interesting in the context of the present judgment is his apparent acceptance that the doctrine of consideration still exists. Indeed, in relation to Harrity, Robertson JA expressly stated (at [31]) that he preferred to rest his decision with regard to the enforceability of the disclaimer clause “on a lack of consideration” [emphasis added].

84 More recently, however, the British Columbia Court of Appeal, in Rosas v Toca [2018] BCJ No 938; [2018] BCCA 191 (“Rosas”), had occasion to consider the issue as to whether it was appropriate to reform the doctrine of consideration as it applied to the variation of an existing contract (this case was also cited in Cartwright at para 9–24, note 198). It was necessary in Rosas to determine whether there had been consideration furnished for the multiple forbearance agreements made annually that had been relied upon by the plaintiff in order to preserve her limitation period. The court below had held that the relevant limitation period had expired and the plaintiff appealed to the British Columbia Court of Appeal, which held that the forbearance agreements were enforceable and therefore delayed the running of the limitation period. In the circumstances, the plaintiff’s action was thus commenced within the limitation period and was not time-barred. Her appeal was therefore allowed.

85 R J Bauman CJBC delivered the judgment of the court (with which L Fenlon and B Fisher JJA agreed). The learned judge undertook an extremely comprehensive survey of the relevant case law as well as legal scholarship in relation to the doctrine of consideration. Interestingly, Bauman CJBC was of the view (at [104]) that NAV “expressly approve[d] of, and indeed buil[t] on, the reasoning from [Williams]”. The learned judge then proceeded, later in his judgment, to elaborate that NAV had in fact “expanded the doctrine of consideration even more radically than in [Williams]”, and he observed as follows (at [109]):

86 The observations just quoted in the preceding paragraph hark back to the ambiguity we have already indicated above (at [75]–[76]). It is perhaps even more interesting that Bauman CJBC proceeds to immediately observe in the next paragraph (at [110]) as follows (a point which we have also already noted above at [83]):

87 Most interestingly, perhaps, Bauman CJBC observes (at [112]) that:

Whilst the learned judge does attempt an explanation, this is, with respect, only at the level of the specific facts and does not really deal with the implications from the standpoint of general legal principle (which, ex hypothesi, would be applicable to all future cases where the same legal issue arises).

88 It should also be noted that Rosas ([84] supra) also referred to reforms beyond the shores of Canada (at [123]–[130]), and these included the New Zealand decisions in Antons Trawling ([67] supra) and Teat ([71] supra). It bears reiterating, however, that the New Zealand position is far from clear (see generally [67]–[73] above).

89 Bauman CJBC in Rosas also refers to the academic literature (at [131]–[154]) but, even here, it is clear that there is no consensus; this is perhaps not surprising in so far as the very nature of academic discourse is concerned.

90 Having conducted such a comprehensive comparative survey, Bauman CJBC arrived at the conclusion (especially at [176], [180] and [183]) that the requirement of consideration can be dispensed with in the context of contractual variation or modification, taking into account the fact that it is unnecessary to justify the enforcement of such agreements by finding consideration through “imaginative bases” or “machinations” in any given fact situation (at [176] and [179]); he observes as follows (at [180]–[181]):

91 With respect, the fact that the parties are already in an existing contractual relationship cannot (as we have already explained above at [64]) – in and of itself – justify dispensing with the requirement of consideration in all cases of contractual variation or modification. There are also a number of other difficulties that have been set out both above and below. Finally, it is interesting that Bauman CJBC also held (at [177]) that “[i]f one were driven to find consideration here, even in a modified form”, there were, indeed, practical benefits that had flowed to the promisor on the facts of this particular case (at [177]–[178]) – presumably, pursuant to the principles set out in Williams ([4] supra).

92 It remains to be seen whether the courts of the other Canadian provinces will follow the British Columbia Court of Appeal’s clear departure from the conventional approach. It will be seen, therefore, that the Canadian position as a whole is not as clear as it might appear at first blush. Further, even if the position was clear (in supporting the appellant’s argument that consideration is not required in the context of contractual variation), it is equally clear (if not clearer) that there are numerous difficulties with the adoption of such a position. In so far as the former point is concerned, it is also noteworthy that one of the leading textbooks in Canadian contract law merely cites both Williams and NAV ([74] supra) in the footnotes without any attempt to explain the inconsistencies (if any) between both decisions (see S M Waddams, The Law of Contracts (Thomson Reuters, 7th Ed, 2017) at para 138, notes 383, 384 and 385).

93 We have examined the relevant case law in some detail in order to demonstrate that it is – at best – inconclusive in so far as support for the proposition that consideration is not required in the context of contractual variation or modification is concerned. Put simply, the doctrine of consideration is still very much a requirement for the variation or modification of existing contracts in so far as the overall case law in the Commonwealth is concerned. Further, and in any event, there are many difficulties that such case law has not addressed. We are therefore not persuaded by the reasons given in those judgments for the departure from the requirement for consideration in the context of contractual variations or modifications.

94 Fifthly (and this is a point that has been raised by many commentators with regard to the decision in Antons Trawling ([67] supra)), the broader issue that is raised is whether abolishing the requirement of consideration in the context of contractual variation is the thin end of the legal wedge. Put simply, why should the doctrine of consideration not be abolished with regard to the formation of contracts as well if the doctrine is indeed abolished in the context of contractual variations (see, for example, Ulyatt at p 1395; Scott at pp 215−216; Lee at p 199 (and, by the same author, Consideration at para 04.060); as well as Marcus Roberts, “Variation contracts in Australia and New Zealand: whither consideration?” (2017) 17 OUCLJ 238 at pp 257–258)? That is a valid question to raise and brings us back – full circle once again – to the more general issue as to whether or not the doctrine of consideration as a whole should be abolished (which is a point which we have already dealt with above as well as in the coda to Gay Choon Ing ([2] supra) many years earlier).

95 For the reasons set out above, the appellant’s argument on this particular issue must fail as well.

96 We accordingly dismissed the appeal. We awarded the respondent costs fixed at $38,000, inclusive of disbursements. The usual consequential orders applied.