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.
“(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
The Court’s role includes to:
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:
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.
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:
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:
We can assist you to obtain the orders you require.
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:
To successfully obtain a Mareva injunction, or freezing order, an applicant must show:
This was held to be a low threshold in Curtis v NID Pty Ltd  FCA 1072 ay ). An example of this threshold is that a Defence having been filed does not mean there is no arguable case; and
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).
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:
This can be easier to show where:
A prima facie case of:
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).
The Court can make a freezing order, or Mareva order, where there is a danger that the respondent may not be able to meet:
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.
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:
Regardless of who owns or is in possession or control of assets, a freezing order can apply to:
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.
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:
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:
The amount of security should be enough to cover any likely judgement, costs, and interest.
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:
Aitken Whyte Lawyers can assist you with:
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000