1. Application for leave to file a further affidavit in proceedings to vary a decree nisi concerning children's living expenses following supervening events. (Para 1 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 )
Back
Next 
2026 MarsdenLR 280
HIGH COURT MALAYA MELAKA
RAJA SEGARAN S KRISHNAN, JC
RE: LAI KIEN FONG & – Appellant
Versus
ANOR – Respondent
[Divorce Petition No: MA-33JP-47-03/2019]
The court may exercise its inherent powers under Order 92 rule 4 of the Rules of Court 2012 to admit a further affidavit after the close of evidence if it is a relevant evidential update due to supervening events and any prejudice can be cured.
Headnote:(A) Rules of Court 2012 - Order 32 rule 13(2) and Order 92 rule 4 - Filing of affidavits in chambers proceedings - Timetable for affidavit evidence is intended to ensure procedural orderliness and prevent tactical disruptions (Para 18) - However, the court retains inherent powers under Order 92 rule 4 to make orders necessary to prevent injustice or abuse of process, ensuring procedure remains an instrument of justice rather than an obstacle (Para 19).
(B) Admissibility of further affidavits - Once the court has directed that affidavit exchange is finalized or the matter has moved to the submission stage, a further affidavit is not admissible as of right and requires leave of court (Para 26) - The exercise of discretion to grant leave depends on the true character of the affidavit, the explanation for the delay, material relevance to a live issue, whether it changes the substance of the case, and whether any resulting prejudice can be cured (Paras 33-35) - A distinction is drawn between affidavits that seek to repair weaknesses or improve a case and those that merely correct, update, or regularize the evidential record (Para 24).
Facts of the case:
In proceedings to vary a decree nisi regarding children's access and living expenses, the affidavit exchange had been treated as finalized and directions for written submissions had been given. Following the deaths of the grandparents who had previously assisted in the children's care, the applicant sought leave to file a supplementary affidavit to provide updated documentary evidence regarding the actual costs of hiring a domestic helper. This care-cost component had already been embedded in the original variation application.
Findings of Court:
The proposed affidavit was not a fresh claim or an attempt to enlarge the scope of the application, but rather an evidential update to an existing claim prompted by supervening events (Paras 44-45). The court found that the deaths of the grandparents materially altered the factual setting of the care-cost assessment. Any procedural prejudice to the opposing party could be adequately cured by granting liberty to file a confined reply affidavit (Para 54).
Issues: Whether, notwithstanding the prescribed timetable under Order 32 rule 13(2) and earlier case-management directions, the court retains and ought to exercise its power to grant leave for a further affidavit, and whether such an affidavit causes prejudice or unfairness justifying its refusal (Para 15).
Ratio Decidendi: Leave to file a further affidavit after the closure of the ordinary sequence should be granted where the applicant provides a satisfactory reason for the late filing, the proposed material is materially relevant to a live issue, it does not unfairly recast the case, and any prejudice to the opposing party can be cured without derailing the fair and orderly disposition of the proceedings (Para 37).
Result: Leave granted to file one Additional Affidavit and one Affidavit in Reply.
Legal Category Hierarchy
- family law
- practice and procedure
Table of Contents
2. Dispute over whether a proposed additional affidavit constitutes an impermissible reopening of a concluded exchange or a justified evidential update regarding supervening events. (Para 3 , 4 , 14 , 47 )
3. The court distinguished between affidavits that repair weaknesses and those that update the record due to supervening events, balancing procedural discipline with just adjudication. (Para 2 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 )
4. Leave for further affidavits after closure is granted if the applicant shows satisfactory reasons, material relevance, no unfair recasting of the case, and curable prejudice. (Para 35 , 36 , 37 )
5. Leave granted to file one additional affidavit and one reply affidavit within specified timelines, with costs in the cause. (Para 61 , 62 , 63 , 64 , 65 )
6. Does the court retain power to grant leave for further affidavits after the ordinary exchange is closed or directions for submissions are given?
Yes, while O 32 r 13(2) establishes the ordinary timetable, O 92 r 4 preserves the court's inherent powers to grant leave to prevent injustice, provided the application is formally made and the request is justified. (Para 17 , 18 , 19 , 22 , 26 , 62 )
7. What principles govern the court's discretion to admit a further affidavit after the procedural deadline has passed?
The court considers the affidavit's character (corrective vs. repairing weaknesses), the reason for delay, whether material arose from supervening events, its relevance, whether it changes the case's substance, and if prejudice can be cured. (Para 33 , 35 , 37 , 58 )
8. How does the court distinguish between an impermissible reopening of a case and a permissible evidential update?
An update is permissible if it particularises or proves a matter already in issue—such as reflecting supervening events—whereas it is impermissible if it introduces a new factual foundation or seeks to repair previous omissions. (Para 24 , 33 , 45 , 46 )
9. What constitutes procedural prejudice when determining whether to admit a late affidavit?
Prejudice is not mere forensic discomfort or the fact that new material strengthens a case; it is procedural unfairness that cannot be cured by a reply affidavit, adjournment, or costs. (Para 34 , 53 , 54 )
JUDGMENT
A. Introduction
[1] This Judgment concerns an interlocutory application filed in pending proceedings to vary the terms of the decree nisi relating to the parties' children. The application does not call for determination of the substantive variation itself. What falls for decision is whether leave ought to be granted to file a further affidavit after the earlier affidavit exchange had been treated as finalised.
[2] The application arises in a context familiar to chambers practice. Affidavit proceedings often progress through an initial sequence of affidavits, followed by case management directions closing affidavit exchange and fixing timelines for submissions. Thereafter, one party seeks to place before the court a further affidavit, sometimes to repair deficiencies, sometimes to introduce later developments, and sometimes to regularise the record. The recurring nature of that problem makes it necessary for the court to state clearly the principles that govern such applications.
[3] The immediate dispute concerns updated documentary material said to bear on a component of the children's care expenses. The procedural objection is that the affidavit stage had closed, directions for submissions had already been given, and the application came too late. The evidential answer is that the proposed material reflects supervening events and does not alter the underlying case already advanced in the variation proceedings.
[4] The real controversy is therefore Whether the proposed affidavit is, in substance, an impermissible reopening of a concluded affidavit exchange, or whether it is a confined and justified evidential update that may properly be received under the court's procedural and inherent powers. That issue matters because it determines not only whether the present material may be admitted, but also the proper balance between procedural discipline and just adjudication on an accurate record.
B. Material Facts And Procedural History
[5] The parties' marriage was dissolved by joint petition. Under the decree nisi, provision was made, among other things, for reasonable access in relation to the two children and for the costs of the children's living expenses to be borne equally by the parties. That forms the background to the later application to vary the decree.
[6] The substantive variation application was filed on 29 July 2024 and bears encl 13. The notice of application seeks, among other relief, variation of the relevant paragraphs of the decree in relation to access and the children's living expenses. The same notice expressly sets out detailed proposed changes to the financial arrangements concerning the children.
[7] In the affidavit filed in support of that variation application, an estimate of the children's expenses had already been set out. The evidential materials now before the court show that the earlier expense structure already contained a component relating to the care of the children by the wife's parents, benchmarked against the cost of a domestic helper and associated expenses. The present application therefore arises against an existing care-cost component already embedded in the variation case.
[8] The affidavit history then became extensive. At case management on 2 September 2025, leave was granted for the filing of a 3rd affidavit in reply, dated 26 September 2025, and affidavit filing was thereafter treated as finalised. The materials before the court record that the affidavit was filed accordingly.
[9] On 3 October 2025, a 4th affidavit in reply was filed without prior leave. At the next case management on 7 October 2025, directions were given for written submissions. The matter then moved, procedurally, beyond the ordinary affidavit stage.
[10] The proceedings did not then proceed directly to disposal. On 15 December 2025, the court was informed that settlement discussions were under way. The papers also record repeated requests for extensions of time in relation to submissions
