1. ) TAN LIANG SWEE 2. ) TAN GIM LIN v Suruhanjaya Sekuriti Malaysia

Case Significance

Illustrates the duty of full and frank disclosure on an ex parte leave application, holding that an ex parte order granting leave for judicial review will be set aside where the applicant failed to disclose non-compliance with the mandatory Order 53 procedure.

This High Court decision at Kuala Lumpur concerns an application by the Securities Commission to set aside an ex parte order granting leave to commence judicial review, on the ground that the leave had been obtained without full and frank disclosure and in breach of the mandatory procedure for leave applications. The applicants had obtained, ex parte, an order granting leave to bring judicial review proceedings touching on provisions of the Capital Markets and Services Act 2007. The Securities Commission, as respondent, applied under Order 32 rule 6 and Order 92 rule 4 of the Rules of Court 2012 for declarations that the ex parte notice of application was irregular and that the ex parte leave order was null and void.

The court examined the requirements governing an application for leave to commence judicial review under Order 53 of the Rules of Court 2012, and the duty of an applicant who proceeds ex parte to make full and frank disclosure of all material facts within its knowledge. It found that the ex parte leave had been granted under false pretences, because the applicants had failed to be forthcoming with the presiding judge about their non-compliance with the mandatory provisions of Order 53 rules 3 and 4 at the hearing of the ex parte application. The subsequent filing of a corrective or supplemental affidavit, some two months after the leave order was granted, could not remedy that non-compliance.

The court further accepted that the ex parte order had been obtained without full and frank disclosure of all material facts, in breach of the trite duty of candour that attaches to ex parte applications. On those grounds it allowed the Securities Commission's application to set aside the ex parte leave to commence judicial review, awarding costs, while the applicants withdrew their related application for an injunction, with costs. The judgment is a clear illustration of the duty of full and frank disclosure on an ex parte leave application, and of the consequences of failing to disclose non-compliance with the mandatory judicial-review procedure.