AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
There are also court fees associated with the granting of a freezing order. The court will not grant a freez - ing order without the applicant providing the usual undertakings as to damages ( Frigo v Culhaci (1998) NSWCA 88; Air Express Ltd v Ansett Transport Indus- tries (Operations) Pty Ltd (1981) 146 CLR 249), as in its absence if the proceedings were to fail, the respond - ents would have no remedy available to them. The court may require the applicant to make a payment to the court, or to give other security for the perfor - mance of the undertaking. It should also be noted that under Australian law, there is no need to give a cross-undertaking as to damages. In the case where a substantive respondent does not comply with the freezing order, the efficacy of the order depends upon compliance by third parties. This is due to the fact that the effect of a freezing order is not confined to the parties, but extends to include a third party where a freezing order has also been made against them or notice of the order is given to the third party. In the latter case, the third party is not bound by the order but will be guilty of contempt of court if it does anything to support the breach. Spe - cifically, the third party may be penalised in the form of a committal, sequestration or fine. Similarly, where a defendant refuses or neglects to do any act within the time specified in this order for the doing of the act, or disobeys the order by doing an act which the order requires them to abstain from doing, they will also be liable to imprisonment, sequestration of property or other punishment. As outlined in Rules 25.12 and 25.13 of the UCPR (NSW), orders ancillary to a freezing order are avail - able to assist in requiring a defendant to disclose their assets. The overarching objective of an ancillary order, similar to that of a freezing order, is to prevent events that would frustrate the court’s processes. The most common form of order is that the respond - ent discloses the nature, location and details of their assets. By requesting that the defendant disclose the nature of their assets, this allows for the identification of third parties such as banks and financial interme - 2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets
diaries who have custody of the assets and enables notice of the order to be given to these parties to bind them to the order ( Universal Music Pty Ltd v Sharman License Holdings Ltd (2005) 228 ALR 174, 181 [20]) (“ Universal Music ”). In the case where there is a failure on the part of the defendant to disclose their assets at all or in a timely fashion, leave is likely to be granted to cross-examine a deponent on an assets disclosure affidavit ( Universal Music at 184 [28]). Failure to comply with the require - ments to give disclosure, or provision of false or mis - leading information, is likely to give rise to a charge of contempt. Penalties for a charge of contempt may include the sequestration of assets, the imposition of a fine or even imprisonment. In most cases, it is left up to the offended party to enforce contempt. In First Class Securities Limited v Global Future Holdings Pty Ltd (Freezing Orders) [2026] FCA 48, the Federal Court referred to commentary by Moore J in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1587; 228 ALR 174 at [20] as to the impor - tance of asset disclosure to give efficacy to a freezing order and that failure to comply with orders requir - ing a party to provide such disclosure may expose a party to contempt orders. Ultimately, the court found that the respondent’s pattern of non-compliance and dishonesty (including failure to comply with orders requiring asset disclosure) supported the making of freezing orders. 2.2 Preserving Evidence There are several forms of key interim relief available to claimants in order to preserve evidence. The two common remedies available to the claimant are known as a freezing order (Mareva injunction) or a search order (Anton Piller order), both of which are sought on an ex parte basis. Details of a freezing order and the requirements that must be met in order for such an order to be granted are outlined in 1.7 Prevention of Defendants Dissi- pating or Secreting Assets . Additionally, a claimant may obtain a search order, in order to enter premises and inspect, remove or make copies of relevant documents or specified things in circumstances where it is feared that those docu -
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