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Timing of Filing Affidavit in Support of Leave Motion in the Federal Court
Affidavit in Support as Part of Interlocutory Application The affidavit supporting a leave application is considered interlocutory but becomes a crucial part of the substantive case if leave is granted. It is typically served together with the notice of motion and forms the initial basis of the applicant’s case in the main proceeding. This is consistently reflected in multiple sources, including
DATO SERI MOHD NAJIB TUN HJ ABD RAZAK vs MENTERI DALAM NEGERI & ORS - 2025 MarsdenLR 2399
,DATO SERI MOHD NAJIB TUN HJ ABD RAZAK vs MENTERI DALAM NEGERI & ORS - 2025 MarsdenLR 875
, andDATO SERI MOHD NAJIB TUN HJ ABD RAZAK vs MENTERI DALAM NEGERI & ORS - 2025 MarsdenLR 1635
, which emphasize that the affidavit supporting leave is filed simultaneously with the notice of motion ["references"].Timing of Filing The general consensus is that the affidavit in support of the leave application should be filed concurrently with or immediately after the notice of motion. The courts indicate that serving the affidavit together with the notice ensures clarity and procedural correctness, especially when leave is granted, and the case proceeds to substantive hearing ["references"].
Procedural Flexibility and Court Practice While some sources hint at procedural flexibility, the prevailing practice and judicial expectation are that the affidavit supporting the leave application is filed at the same time as the notice of motion. For instance, in the case discussed in
DATO SERI MOHD NAJIB TUN HJ ABD RAZAK vs MENTERI DALAM NEGERI & ORS - 2025 MarsdenLR 2399
and related sources, the courts have underscored the importance of this timing to establish the applicant’s case from the outset ["references"].Exceptions and Specific Cases There are instances where the affidavit may come after the notice, particularly if leave is granted and the case advances to the substantive stage, but such scenarios are less common and not the standard procedure. The emphasis remains on simultaneous filing to ensure procedural propriety and clarity in the application process ["references"].
Analysis and ConclusionBased on the referenced sources, the prevailing view in the Federal Court is that the affidavit in support of a leave motion should be filed simultaneously with the notice of motion. This practice ensures that the court and respondents have a complete set of documents to consider from the outset, facilitating a clear and efficient process. Filing the affidavit after the notice is generally not standard and may be viewed as procedurally improper unless specific circumstances justify such delay.
References:-
DATO SERI MOHD NAJIB TUN HJ ABD RAZAK vs MENTERI DALAM NEGERI & ORS - 2025 MarsdenLR 2399
-DATO SERI MOHD NAJIB TUN HJ ABD RAZAK vs MENTERI DALAM NEGERI & ORS - 2025 MarsdenLR 875
-DATO SERI MOHD NAJIB TUN HJ ABD RAZAK vs MENTERI DALAM NEGERI & ORS - 2025 MarsdenLR 1635
-WONG WENG FOO & CO vs LONDON BISCUITS BERHAD - 2024 MarsdenLR 606
-WONG WENG FOO & CO vs LONDON BISCUITS BERHAD - 2024 MarsdenLR 1569
In the fast-paced world of litigation, procedural missteps can derail even the strongest cases. One common pitfall for practitioners in Malaysia's involves the timing of filing an of a for . Getting this right is crucial to avoid dismissal. This post explores the legal requirements, drawing from judicial precedents and rules, to guide you through the process.
Important Disclaimer: This article provides general information based on reported cases and is not legal advice. Procedures may vary by jurisdiction or specific circumstances. Always consult a qualified lawyer for your situation.
A frequent query arises in practice: In the , whether an of a notice for leave motion must be filed simultaneously or may come after?
The prevailing view, as reflected in Malaysian court rules and decisions, is clear: the affidavit must be filed simultaneously with the . Delayed or separate filing is typically viewed as a , potentially leading to refusal of leave. This stems from the need for proper verification of facts at the outset, ensuring procedural integrity under rules like Order 52 of the Rules of the 1980 (RHC).
Courts emphasize that the affidavit supports the notice from the moment of filing. Non-compliance undermines the application's validity. Key principle: The of the application must be filed simultaneously with the and the non-filing of the statement is fatal to the applicant’s application 2022 8 Supreme 214.
This mandatory requirement aligns with the and Supreme Court/ practices, promoting efficiency and fairness.
underscores timelines: unless within after such leave was granted the motion is entered for hearing the leave shall lapse
. This implies the notice and supporting affidavit must be ready and served together for validity.
In , the court clarified: the of the is that of the applicant's solicitor and noted failure to serve the affidavit with the notice as a defect not remedied later
.
Judicial pronouncements reinforce simultaneity: The defect arising from nonfiling of the statement cannot be corrected by affidavit and it is mandatory that both statement and of the application must be filed
. One document cannot substitute for the other post-filing.
In another ruling, non-compliance with —requiring affidavits before or with the notice—was not a mere irregularity but was fatal
.
.
For instance, in a case under , applicants filed a for leave, but the supporting affidavit lacked key justifications, highlighting scrutiny on completeness
.
Broader precedents echo this rigor. In applications, affidavits must be based on direct knowledge, not , and filed integrally with the leave notice
. evidence is inadmissible in applications for
DATO SRI MOHD NAJIB TUN ABD RAZAK vs MENTERI DALAM NEGERI & ORS
.A for leave to introduce new evidence included grounds in the supporting affidavit, filed together post-judgment
Datoâ Sri Mohd Najib bin Tun Hj Abd Razak vs Menteri Dalam Negeri & Ors
. Similarly, in motions, affidavits routinely accompany notices from inception 1999 0 Supreme(Bom) 121 1999 0 Supreme(Bom) 115.Under , affidavits for leave must match those for substantive hearings, implying no post-filing changes
. These examples across civil, appellate, and review matters show consistent practice.
In appeals against single Judge decisions under , cogent reasons via affidavit are examined upfront; insufficiency dooms the motion
.
No broad exceptions appear in the reviewed materials. Courts rarely relax rules absent extraordinary circumstances, like specific procedural grants not evident here. or incomplete affidavits further invalidate
DATO SRI MOHD NAJIB TUN ABD RAZAK vs MENTERI DALAM NEGERI & ORS
.Recommendations for Practitioners:- Prepare and file the affidavit with the notice to ensure compliance.- Verify contents for direct knowledge and relevance.- Avoid delays; time limits are strict (e.g., post-leave)
.- If omitted inadvertently, refile anew rather than amend—courts view cures skeptically.
In family or commercial disputes, like trade mark transfers, full disclosure via affidavit is paramount; suppressions lead to denial 1999 0 Supreme(Bom) 121 1999 0 Supreme(Bom) 115.
By adhering to these principles, litigants safeguard their appeals. Stay informed on evolving practices—Malaysian courts prioritize procedural purity to uphold justice.
References:-
,
, 2022 8 Supreme 214,
,
,
,
,
,
,
Datoâ Sri Mohd Najib bin Tun Hj Abd Razak vs Menteri Dalam Negeri & Ors
,DATO SRI MOHD NAJIB TUN ABD RAZAK vs MENTERI DALAM NEGERI & ORS
, 1999 0 Supreme(Bom) 121, 1999 0 Supreme(Bom) 115 #FederalCourtMalaysia, #LeaveMotionAffidavit, #LegalProcedure
[105] The grounds in support of this Notice of Motion are as specified in the Affidavit in Support of Muhammad Shafee bin Abdullah. ... [31] Post judgment by the High Court, the Appellant appealed and also filed a Notice of Motion for leave to introduce new evidence (Encl 26). ... The application for leav....
[105] The grounds in support of this Notice of Motion are as specified in the Affidavit in Support of Muhammad Shafee Bin Abdullah. ... [31] Post judgment by the High Court, the Appellant appealed and also filed a Notice of Motion for leave to introduce new evidence (Encl 26). ... The application for leav....
[105] The grounds in support of this Notice of Motion are as specified in the Affidavit in Support of Muhammad Shafee bin Abdullah. ... The application for leave itself is undoubtedly interlocutory; however, if leave is granted, the affidavit in support of the leave application is served together with the ....
[4] Aggrieved, the applicants filed a Notice of Motion dated 9 March 2021 (Motion of 9 March 2021) for leave to appeal to the Federal Court pursuant to subsection 96(a) of the Courts of Judicature Act 1964 (Act 91). ... [31] There was nothing in the affidavit in support to show why the application was filed other t....
On May 24, the district court entered a text Order denying the Motion without prejudice “for the following reasons”: Most importantly, the motion was filed without adequate factual support on which the Court could base a determination whether the fees incurred were reasonable ... On May 13, 2023, attorney Gie....
In the motion, he suggested three dates to list the application for support for leave and moved court to issue notice on the respondent; further, he admitted that he did not tender: (a) the original proxy; (b) the original affidavit in support of the petition; (c) the document purportedly ... By motion dated 07.01.2021, the Attorney-at-Law for t....
[31]ÂÂPost judgment by the High Court, the appellant appealed and also filed a notice of motion for leave to introduce new evidence (encl 26). ... [105]ÂÂThe grounds in support of this notice of motion are as specified in the affidavit in support of Muhammad Shafee bin Abdullah. ... a notice of #H....
Court Notice of Motion No. 08(f)-381-11/2023(W) for leave to appeal to the Federal Court in relation to the Court of Appeal's Order dated 30 October 2023 ("COA Order"), and in any appeal to the Federal Court , without requiring the approval ... It must be strictly kept in mind that even LBB did not file a #HL_....
Court Notice of Motion No 08(f) -381-11/2023(W) for leave to appeal to the Federal Court in relation to the Court of Appeal's Order dated 30 October 2023 ("COA Order"), and in any appeal to the Federal Court, without requiring the approval and/or consent ... It must be strictly kept in mind that even LBB did not file....
The application for leave itself is undoubtedly interlocutory; however, if leave is granted, the affidavit in support of the leave application is served together with the Notice of Motion and forms the first basis of the applicant's case in the substantive application. ... The written submissions were to be filed in this Court by the ....
6. Notice of Motion has been taken out for an injunction restraining the defendants from passing off the trade marks belonging to the plaintiff. An affidavit in support of the Notice of Motion has been filed.
6. Notice of Motion has been taken out for an injunction restraining the defendants from passing off the trade marks belonging to the plaintiff. An affidavit in support of the Notice of Motion has been filed.
An affidavit in support of the Notice of Motion has been filed. A perusal of the first recital of the affidavit shows that the words "for myself and on behalf of defendant Nos.
It is further prayed that pending the hearing and final disposal of the suit defendant No. 22 be restrained from completing any transaction in favour of defendant No. 23 pursuant to the agreement dated 17-2-1997 and also that the defendant No. 23 be restrained from making any further payment to defendant No. 22 and from taking possession of the suit property. An affidavit in support of the Notice of Motion has been filed.
It is also prayed that the defendants be restrained by an order of injunction from in any manner interfering with the plaintiffs business management and affairs of and concerning the said property or any part thereof including interfering with the plaintiff’s right to effect transfer of the shares of the plaintiff and/or the premises in the said building. An affidavit in support of the Notice of Motion has been filed.
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