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2025 MarsdenLR 6366
HIGH COURT MALAYA KUALA LUMPUR
TAN SRI DATO KAM WOON WAH – Appellant
Versus
HANNAH KAM ZHEN YI & ANOR (ENCLS 24 25 29 30 45 48 64 68 69 .... – Respondent
[Suit No: WA-23NCvC-114-12/2021]
Mandatory compliance with procedural rules in affidavit submission is essential, but non-compliance does not justify rejection if it does not result in substantial prejudice.
Headnote:(A) Rules of Court 2012 - Order 41 r 1(4) - Requirement for affidavits - The court emphasized that compliance with the mandatory requirements for affidavit submission is crucial, as non-compliance must not lead to substantial miscarriage of justice (Paras 8, 13, 15).
(B) Interest of justice - The court determined that technical non-compliance with procedural rules should not hinder justice as long as no substantial prejudice is demonstrated (Paras 14, 16).
Facts of the case:
The plaintiff, a 96-year-old lawyer and grandfather, filed an application to reject his granddaughter's affidavit due to alleged defects in its residential address. The 1st Defendant argued that the application was frivolous and did not result in prejudice.
Findings of Court:
The court found no substantial miscarriage of justice from the affidavit's alleged defects and dismissed the plaintiff's application with costs.
Issues: Whether the 1st Defendant's affidavit complied with the mandatory requirements and if the plaintiff's application was meritorious.
Ratio Decidendi: The court ruled the failure to comply with the affidavit rule did not necessarily warrant the application for striking out, provided no actual prejudice occurred.
Result: Application dismissed with costs of RM5,000.
| Table of Content |
|---|
| 1. application for relief against affidavit compliance. (Para 1 , 2 , 3 , 4) |
| 2. plaintiff argues affidavit defects. (Para 5 , 6 , 7) |
| 3. 1st defendant counters plaintiff's claims. (Para 9 , 10 , 11) |
| 4. court evaluates compliance impact. (Para 13 , 14 , 15 , 16) |
| 5. court's consideration of non-compliance context. (Para 17 , 18 , 19) |
| 6. court's decision on application dismissal. (Para 20) |
[Enclosure 29: To Reject 1St Defendant's Affidavit In Support (Enclosure 24)]
Background
[1] This is the Plaintiff's Notice of Application filed pursuant to O 42 r 1(4) to read together with O 92 r 4 Rules of Court 2012 for the following orders or reliefs:
a) that the 1st Defendant's Affidavit in Support (to strike out the Plaintiff's claim against the 1st Defendant) affirmed by Hannah Kam Zhen Yi on 24 March 2022 in Encl. 24 be rejected and/or not admitted;
b) to that effect, that the 1st Defendant's Affidavit in Support be removed from the file of this proceeding/cause list;
c) following the above prayers, that the Notice of Application (striking out of the Plaintiff's claim against the 1st Defendant) dated 24 March 2022 (Encl. 25) be dismissed with costs;
d) costs of this application to be paid by the 1st Defendant to the Plaintiff; and
e) any other orders or reliefs that the Court deems fit and appropriate.
[2] The grounds in support of the Plaintiff's application are as stated in the 1st Defendant's Affidavit in support affirmed by Tan Sri Dato' Kam Woon Wah on 24 March 2022 (Encl. 24) that amongst others, the 1st Defendant's Affidavit in Support does not comply with the mandatory requirements set out under O 41 r 1(4) ROC 2012.
[3] The cause papers filed in relation to Encl. 29 are as follows:
a) Plaintiff's Affidavit in Support (Encl. 30) and Reply Affidavit (Encl. 58 and 65);
b) 1st Defendant's Affidavit s in Reply (Encl. 45 and 64);
c) Notis Niat Menggunakan Afidavit (Encl. 48);
d) Plaintiff's Written Submissions and Bundle of Authorities (Encl. 68 and 69); and
e) 1st Defendant's Written Submissions and Bundle of Authorities (Encl. 72 and 73).
[4] The relevant facts not in dispute are as follows:
a) The Plaintiff is the 1st grandfather and is 96 years old. The Plaintiff is a lawyer by profession but not in active practice.
b) The 1st Defendant is a lawyer and also the Plaintiff's granddaughter.
c) On 5 April 2022, the Plaintiff filed Encl. 29.
Plaintiff's Submissions
[5] The Plaintiff submits that the Affidavit in Support of the 1st Defendant filed in Encl. 2 and it ought to be expunged on the ground that the said Affidavit is defective as the address stated in it is not her residential address at No. 45, Langgak Tunku, Bukit Tunku, 50480 Kuala Lumpur, Malaysia.
[6] The 1st Defendant was not residing at the said address for the following reasons:
a) The ownership of the said Address was transferred by 1st Defendant's father, Andrew Kam to Lee Siew Chow on 11 June 2020;
b) The said Address was found to be in an abandoned and dilapidated condition. The sole occupant of the said Address is a Bangladeshi security guard; and
c) The Tenaga Nasional Berhad's bills for the said address shows that the electricity usage decreased drastically when 1st Defendant and her family ceased occupying at the said address, after 1st Defendant father sold and transferred the property to its present owner.
[7] By providing a false address, this is in violation of O 41 r 1(4) ROC 2012 which states as follows:
"O 41 r 1 ROC 2012
(4) Every affidavit shall be expressed in the first person and shall state the place of residence of the deponent and his occupation or, if he has none, his description, and if he is, or is employed by, a party to the cause or matter in which the affidavit is sworn, the affidavit shall state that fact:
Provided that in the case of a deponent who is giving evidence in a professional, business or other occupational capacity, the affidavit may, instead of stating the deponent's place of residence, state the address of which he
