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Freezing Orders | Mareva Injunctions | Asset Preservation Orders

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What Is a Freezing Order?

A freezing order is another name for a Mareva injunction or asset preservation order.

It is a Court-ordered injunction to stop someone from dealing with assets. It can stop a party from selling assets or moving assets offshore before the Court hears the dispute.

Rule 260A of the Uniform Civil Procedure Rules 1999 (Qld) states:

“(2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.”

Uniform Civil Proceedure Rules 1999 – Reg 260A

Purpose of a Mareva Injunction

The Court’s role includes to:

• ensure fairness in legal proceedings; and
• prevent steps from being taken that would render judicial proceedings ineffective.

The Supreme Court of Queensland has inherent jurisdiction to make orders to this end. This gives the Supreme Court jurisdiction to determine applications for freezing orders.

Rule 260A of the Uniform Civil Procedure Rules 1999 (Qld) also provides:

“(1) The court may make an order (a “freezing order”) for the purpose of preventing the frustration or inhibition of the court’s process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied.”

Uniform Civil Procedure Rules 1999 – Reg 260A

A Mareva order prevents the respondent from dealing with their assets, such as by:

• selling their property; or
• transferring funds to a third party

The order can thereby ensure that a Defendant has the means to pay a final judgement against them. Thus, it ensures that obtaining a judgement is an effective way to recover an amount claimed.

Is A Freezing Order an Interim or Interlocutory Injunction?

An application for a Mareva injunction may be made ex parte, without notice to the respondent and made as an interim injunction. The purpose of making a freezing order, or Mareva order, as an interim injunction is to:

• deal with the matter urgently, before assets can be dissipated; and
• avoid forewarning the respondent of an application to freeze their assets.

Where a freezing order is made as an interim injunction, the period of the order will generally be short.

The application should be set down for a second Court date as soon as practical. The respondent will have an opportunity to be heard on this date. The onus is on the applicant to demonstrate to the Court why the Mareva order should continue.

Our Brisbane litigation lawyers have experience appearing at such applications for both:

• the applicant; and
• the respondent.

We can assist you to obtain the orders you require.

Other Court Orders

The applicant can also seek ancillary orders from the Court. An example is an order for the respondent or a third party to provide information about their assets.

The Court will make any ancillary orders it considers appropriate. These orders are generally for the purpose of:

• obtaining information about relevant assets; and
• deciding whether a freezing order should be made.

How To Obtain a Mareva Order

To successfully obtain a Mareva injunction, or freezing order, an applicant must show:

1. that they have a “good arguable case“.

This was held to be a low threshold in Curtis v NID Pty Ltd [2010] FCA 1072 ay [6]). An example of this threshold is that a Defence having been filed does not mean there is no arguable case; and

2. a danger that the respondent will deal with their assets in some fashion or flee.

Thus, a danger that the applicant will be unable to have any judgement satisfied (see Patterson v BTR Engineering (Australia) Ltd (1989) 19 NSWLR 319 at 321-322).

Considerations Of the Court When Granting a Freezing Order

Generally speaking, the Court will grant a Mareva order if it is within the interests of justice to do so.

The onus is on the applicant to demonstrate that there is a real danger that:

• the respondent may abscond; or
• the assets of the respondent may be disposed of, diminished in value, or otherwise dealt with.

This can be easier to show where:

• there is a history of fraud or dishonesty on the part of the respondent; or
• the respondent is accused (and there is evidence) of serious wrongdoing.

A prima facie case of:

• fraudulent misappropriation of assets; or
• serious wrongdoing;

readily supports the inference that the respondent would not preserve their assets (see Patterson v BTR Engineering (Australia) Ltd (1989) 19 NSWLR 319 at 321-322).

Do I Need to Have a Claim Before an Australian Court to Apply for A Mareva Injunction?

The Court can make a freezing order, or Mareva order, where there is a danger that the respondent may not be able to meet:

• an existing judgement; or
• a potential judgement in an existing proceeding.

The Court can also make a freezing, or Mareva, order in anticipation of a prospective cause of action.

In certain instances, the Court may make a freezing order to aid foreign proceedings.

If you have or act in proceedings overseas, we can assist with applications in Queensland. Aitken Whyte Lawyers can act for or in conjunction with foreign lawyers. Where an application needs to be brought in QLD, it is prudent to engage with lawyers in the jurisdiction.

What Assets Can a Freezing Order Apply To?

A Mareva order, or freezing order, can freeze the assets of an individual or company Defendant to a Claim.

The respondent to a freezing order, or Mareva order, application can also be a third party. Another party may be the respondent where that party:

• in any way controls assets of the Defendant(s); or
• may have to contribute toward a potential judgement against the Defendant(s).

Regardless of who owns or is in possession or control of assets, a freezing order can apply to:

• real property (houses, buildings, and land);
• motor vehicles;
• bank accounts;
• shares; and
• personal valuables.

It can also apply to any other assets as the Court sees appropriate.

The value of the assets frozen, however, should not exceed the amount of the Claim plus costs and interest.

Ways A Respondent Can Continue to Deal with Their Assets

There will often be exceptions to a freezing order, or Mareva injunction. Exceptions are required to allow the respondent to continue to live or carry-on business. As such, the respondent will likely be able to access their assets for legitimate reasons. These exceptions, also referred to as “carve-outs“, can include:

• a set amount for ordinary living expenses;
• reasonable legal costs as determined by the Court; and
• payments made in the ordinary course of the respondent’s business. Such payments can include wages and properly incurred business expenses.

Applications To Vary or Discharge a Mareva Order

The Courts recognise that a freezing, or Mareva, order is a significant imposition. As such, the respondent can apply on short notice to vary or discharge the order. The Courts will urgently hear such an application.

The orders can also be varied by consent.

The respondent can avoid the imposition of a freezing order by providing security. This may be done, for example, by:

• paying a sum to the Court;
• paying a sum into a joint bank account between the parties’ solicitors; or
• providing a bank guarantee.

The amount of security should be enough to cover any likely judgement, costs, and interest.

Focused On Results

If someone owes significant funds to you or your company, you may be able to apply to Court for a freezing order. Due to the significant repercussions, the Court will not grant such an order lightly. As experienced litigation lawyers, we will ensure your application meets all necessary requirements.

Speak to us if you are considering making a Claim but are worried the other side may try to hide or sell their assets. We will consider not just the merits but also the commerciality of your Claim. Whether the Defendant will be able to satisfy a judgement is a large part of this.

A Mareva injunction, or freezing order, can be a very effective tool in litigation. We have experience in these types of applications for both applicants and respondents.

When dealing with urgent and complex Court applications, proper experience is essential.

Aitken Whyte Lawyers are focused on results. Our civil litigation lawyers will advise you on the proper course to take if:

• you are concerned a party may transfer their assets to avoid paying a judgment;
• an application for freezing orders, or Mareva orders, has been brought against you; or
• you require legal representation to resolve a dispute.

Aitken Whyte Lawyers can assist you with:

• all applications for urgent Court orders; as well as
• any other civil or commercial dispute.

Office Location and Contact Details

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au