AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
2.4 Procedural Orders An interlocutory application to obtain a freezing order or asset preservation order is typically sought on an ex parte basis, that is, without providing notice to the respondent, in order to avoid the frustration of a pro - spective court judgment, as a result of the dissipation of assets by the respondent (UCPR r 25.11 (1)). In making an ex parte application, an applicant must demonstrate (in addition to the other factors required for the interlocutory order) that there is a risk that the respondent will either flee the jurisdiction, or dispose of or diminish the value of the assets, so that an even- tual judgment is wholly or partly unsatisfied (UCPR r 25.14 (4)). 2.5 Criminal Redress The interplay between civil proceedings and a crimi - nal prosecution is important because a fraud victim needs to take urgent steps to recover and prevent stolen assets being shifted, laundered or sent over - seas, whilst pressing criminal charges against the perpetrator(s) of the crime. In Australia, recovery of assets via the commencement of civil proceedings does not prevent the pressing of criminal charges. With the exception of urgent applications for relief, it is usual for civil recovery actions to be stayed pending the conclusion of criminal proceedings against a party charged with criminal offences arising out of the same or overlapping factual matters. The decision in National Australia Bank Ltd v Human Group Pty Ltd [2019] NSWSC 1404 illustrates that courts are prepared to grant orders protecting plain - tiffs from the risk of prejudice suffered by reason of a stay of civil proceedings. This is balanced with the risk of prejudice to the accused in the conduct of their defence at a criminal trial. Overall, and subject to the court’s balancing of the aforementioned competing factors, fraud victims can, and ought to, take proac - tive steps in civil litigation to ascertain the wherea - bouts of, and recover, the misappropriated funds. 2.6 Judgment Without Trial Summary Judgment A plaintiff may apply for a summary judgment to be heard on an ex parte basis, where there is evidence
of the facts to substantiate the plaintiff’s claim (UCPR r 13.1). Additionally, there must be evidence, rather than a mere opinion, to support the plaintiff’s belief that the defendant has no defence to the claim or part thereof ( Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81 [47]). For instance, a defendant’s failure to defend the claim may indicate that there appears to be no issue to be tried, as a result of the defendant failing to traverse the plaintiff’s allegations. Ultimately, however, the granting of a summary judgment is an exercise of discretionary power by the court. Onus of the Applicant In New South Wales, Rule 19.4 of the Legal Profes - sion Uniform Law Australian Solicitor’s Conduct Rules 2015 (NSW) (regarding which rules are adopted in a uniform manner across the states and territories) requires that a solicitor, who seeks any interlocutory relief in an ex parte application, must disclose to the court all factual or legal matters that they are aware of, and that the solicitor has reasonable grounds to believe would support an argument against grant - ing the relief, or limit its terms adversely to the client. Equivalent rules exist in each state/territory. Default Judgment A plaintiff may seek a court order for a default judg - ment within 28 days of serving a statement of claim on the defendant if no statement of defence has been filed by the defendant. A default judgment is an order that is made against the defendant, without the court having heard the matter, due to the defendant’s failure to respond to the statement of claim. 2.7 Rules for Pleading Fraud It is well established in Australia that a contention of fraud “should be pleaded specifically and with par - ticularly” ( Forrest v Australian Securities and Invest- ments Commission (2012) 247 CLR 486; [2012] HCA 39 [26]). In Nadinic v Drinkwater (2017) 94 NSWLR 518, the NSW Court of Appeal explored a number of key prin - ciples relevant to the meaning of “fraud” at law and equity, the availability of recission as a remedy for fraud and the procedural consequences of alleging and finding fraud. Noteworthy are the following with
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