AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
these parties to bind them to the order (Univer - sal 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 disclo - sure affidavit (Universal Music at 184 [28]). Failure to comply with the requirements to give disclosure, or provision of false or misleading 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. 2.2 Preserving Evidence There are several forms of key interim relief avail - able 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 Dissipating 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 documents or things might be destroyed or suppressed. The availability of search orders came after the decision in Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55. The key matters the court will take into
consideration when determining whether or not to grant a search order include whether: • there is a strong prima facie case; • the damage suffered by the applicant is seri - ous; • the defendant is in clear possession of incrim - inating documents or items in general; and • there is a real possibility that the defendant might destroy, or otherwise cause to be una - vailable, important evidentiary material that is in the defendant’s possession. It is incumbent on the applicant of an ex parte search order (or a freezing order) to ensure they have fully disclosed all facts material to the deter - mination of the application to the court, including any defences available to the respondent and any correspondence exchanged between the parties relating to the dispute. This was empha - sised in Direct Flow Pty Ltd t/a Arthur Rubber v Andrew Peterson t/a Maxx Rubber [2023] NSWSC 318, where the New South Wales Court of Appeal refused to grant the plaintiff access to materials collected on the execution of a search order. The Court considered that the plaintiff’s non-disclosure to the Court of communications between the parties prior to the application of the search order was material in that (i) it did not bring to the Court’s attention matters which the defendant may have tendered as evidence; and (ii) if the relevant information had been disclosed, there was a high probability that the Court would have dismissed the original search order appli - cation. A claimant may also seek other forms of interim relief to preserve evidence. Specifically, these orders include detention, custody or preserva - tion of property that is relevant to the proceed - ings by way of an interlocutory injunction or the appointment of a receiver.
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