An ex parte without notice application is made to the Court without prior notice being given to the opposing party. The judge therefore hears only one side of the story. To address that imbalance, the law requires the applicant to disclose all material facts, including those that may weaken the application.
Although the rule is well established, breaches are still common. Many arise from oversight, poor presentation, or a mistaken view of what must be disclosed. This article explains the duty in practical terms, highlights common mistakes, and sets out how they can be avoided.
What Does “Full and Frank Disclosure” Mean?
The duty requires the applicant to give the court a fair and complete account of the relevant facts.
The Court of Appeal in The “Vasiliy Golovnin” [2008] 4 SLR(R) 994 (“The “Vasiliy Golovnin””) explained that a judge hearing an ex parte application does not have the benefit of opposing arguments and may therefore not be fully alert to the risks of the order sought (at [85]).
For that reason, the applicant must ensure the court is properly informed.
- Material facts: all facts and matters which could or would reasonably be taken into account by the judge in deciding whether to grant the application (see Poon Kng Siang v Tan Ah Keng [1992] 1 SLR 562).
- The other party’s likely position: arguments or defences that are realistic in light of the known facts (see Bahtera Offshore (M) Sdn Bhd v Sim Kok Beng [2009] 4 SLR(R) 365 ("Bahtera")).
- Facts that reasonable inquiries would have revealed: the duty extends beyond matters actually known to the applicant, to "such additional facts which he would have known if he had made proper inquiries" (see Tay Long Kee Impex Pte Ltd v Tan Beng Huwah [2000] 1 SLR(R) 786 ("Tay Long Kee")).
The court should be able to understand the key points from the affidavit itself, rather than having to search through supporting documents.
Common Mistakes
1. Burying key facts in exhibits
A common error is to exhibit large volumes of documents without explaining what matters. In The Vasiliy Golovnin, the Court of Appeal noted that the supporting affidavit constituted "an impressive 'tome' of some 400 pages" yet the narrative text "only amounted to a miserly 11 pages" (at [95]).
2. Failing to deal with the other side’s case
Applicants sometimes present only their own account and leave out what the other party has said or is likely to say. This can give a distorted picture.
In Bahtera, the court emphasised that the duty "includes defences which are likely to be raised" (at [20]).
3. Omitting inconvenient facts
Facts that weaken the application are sometimes left out. Courts take a serious view of this, particularly where the omission affects the overall picture. In Bahtera, the court found that the plaintiff had "deliberately suppressed and distorted material facts" by, among other things, failing to disclose a court order staying proceedings bound the plaintiff and that the scheme of arrangement had been approved by majority of unsecured creditors.
4. Inadequate inquiries
The duty covers facts that would have been discovered through reasonable checks. In Tay Long Kee, the court made clear that a failure to make proper inquiries will not excuse non-disclosure.
Consequences of Breach
A breach may lead to the order being set aside. The court retains a discretion and will consider factors such as the seriousness of the omission and its impact on the application (see Tay Long Kee and Bahtera).
Where the non-disclosure is deliberate, the court is much more likely to discharge the order. In many cases, this will be decisive regardless of the underlying merits.
In a recent matter, our dispute resolution team successfully applied to set aside an ex parte worldwide Mareva injunction and receivership order obtained against our client, effectively dismantling what the court had initially been led to believe was a clear-cut case of fraud. The claimant was an institutional fund with significant resources and connections. Our client was a single individual. The asymmetry was stark, and the stakes could not have been higher. What made the matter particularly demanding was that the claimant had obtained the injunction by failing to disclose documents that fundamentally reframed the commercial relationship between the parties. Those documents did not surface on their own. It was our team’s tireless work to uncover them, and our client who bore the burden of shifting a narrative that had already taken hold with the court. That work paid off. The court set aside the injunction and receivership order for material non-disclosure. The Appellate Division subsequently refused permission to appeal, affirming that a claimant must disclose evidence it could reasonably have anticipated the defendant would rely on, and that it is not sufficient to exhibit documents without drawing the court’s attention to the details that matter. The decision is a reminder that material non-disclosure may be fatal to an ex parte application, and that the duty of full and frank disclosure to the court is absolute.
Practical Guidance
Practitioners preparing ex parte applications should observe the following guidelines.
- Include both favourable and unfavourable facts.
- Ensure the affidavit contains the key points.
- Address reasonable defences that the other party may take.
- Avoid vague descriptions or selective disclosures.
- Verify important facts before filing.
- Read the affidavit from the other side’s perspective and identify any omissions.
Ex parte applications place significant responsibility on the applicant. The applicant must ensure that the court is able to make a fair decision on a complete picture of the facts.
The risk of breaching the duty to make full and frank disclosure will be decreased with careful preparation, clear presentation, and a willingness to address weaker elements of the case.
If you are interested in freezing orders or fraud and asset recovery matters, you can find out more about our Fraud & Asset Recovery practice and our lawyers, here.
About Oon & Bazul LLC
Oon & Bazul is a leading dispute resolution law firm in Singapore, recognised for complex, cross-border and high-value commercial disputes. We act for corporates, financial institutions, shareholders and high-net-worth individuals across matters including shipping and admiralty, shareholder and joint venture conflicts, fraud and asset recovery, and cryptocurrency and digital asset disputes, and we are frequently instructed for urgent interlocutory relief (including freezing orders and other injunctive remedies) in support of multi-jurisdictional litigation and arbitration. As one of Singapore’s largest conflict-free firms, we deliver practical, commercially grounded advice with speed, discretion and strategic execution.
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