Standard of Proof. 37 Apart from the issue of incorporation, there is a question regarding the applicable standard of proof to be applied in assessing fraud. On this note, there is force in the argument that the appropriate standard of proof to be applied is one of a strong prima facie case of fraudulent or unconscionable conduct; as can be derived from BS Mount Sophia at [20]–[21]; JBE at [9]. The entire context of the case has to be considered thoroughly and an injunction granted only if the entire context was particularly malodorous: BS Mount Sophia at [21]. 38 Having said that, there is to my mind not a significant difference, if any, between the phrases “clear case” of fraud and a “strong prima facie case”. While the Court of Appeal in JBE noted some doubts as to the use of the language “clear case of fraud”, such concern was directed at explaining the distinction between fraud and unconscionability that is now the law in Singapore: at [10]–[13]. In the final analysis, the court has to be satisfied that the evidence shows the possible existence of fraud; though fraud need not be probable, conclusive or determinative. I thus used the term “clear case’” in my oral remarks accompanying my decision, but for the avoidance of doubt, I was satisfied that there was no strong prima facie case (or even a prima facie case) of fraud on the present facts. 39 To put matters in perspective, the present case is one where both sides assert that they are owed a certain sum by the other. Hence, the crux of the dispute is whether, having taken into account the sums due to each side, there remains a foundation for the 1st defendant to call on the guarantee. As a result, much of the contentions focused on showing that the conduct of the respective parties in either claiming payment, or reducing or withholding payment, was justified. According to the plaintiff’s primary position, the 1st defendant could not have justifiably called on the guarantee as its claims against the plaintiff were contrived. The conduct of the 1st defendant was therefore fraudulent as the 1st defendant was effectively representing to the 2nd defendant, the bank, that its call on the guarantee was valid when it knew that there was no foundation to the call. 40 The circumstances and threshold to be met before fraud is invoked is exemplified and elaborated in a number of cases and commentaries:
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