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Law Notes Litigation - Civil Procedure Notes

Pre Commencement Interim Orders Notes

Updated Pre Commencement Interim Orders Notes

Litigation - Civil Procedure Notes

Litigation - Civil Procedure

Approximately 162 pages

These notes aim to set out the relevant legal principles, and material facts from cases in order to demonstrate how those legal principles have been applied. Because of how heavily statute-focused this topic is, in some places I've extracted the relevant statute in the text or in a 'comment'.

At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also 'checklists', which you can use during revisions or ex...

The following is a more accessible plain text extract of the PDF sample above, taken from our Litigation - Civil Procedure Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Interim preservation orders

Table of Contents

Interim preservation orders 1

Summary of freezing orders 2

Summary of search orders 7

5.360 UCPR P 25 9

5.370 Freezing Orders / Mareva injunctions 11

Jackson Sterling Industries 11

Cardile v LED Builders 12

5.400 UCPR Freezing Orders Division 2 13

5.420 UCPR Search Orders Div 3 16

5.430 AUstress Freyssinet v Joseph 18

Intro to interim preservation orders

Interim preservation orders: When something happens that means you need urgent relief from the court. Eg. procedures to preserve rights and property which may be utilized before/after an action is commenced:

  • Orders for preservation of property: UCPR r 25.3

  • Orders for disposal of perishable or similar property: UCPR r 25.4

  • Orders for interim distribution of property/income surplus to subject matter of proceedings: UCPR r 25.5-25.6

  • Orders for payment of shares in a fund before ascertainment of all persons interested: UCPR r 25.7

  • Freezing (Mareva) orders: UCPR r 25.11

  • Search (Anton Piller) orders: UCPR r 25.19

  • Whole idea is that there is something that happens that means you need urgent relief from the court

    • You need to get it before you commence litigation – but you can see that in Cardile plaintiff applies for order once litigation concluded

Summary of freezing orders

1a freezing orders

Rationale: Prevent abuse of court’s process. Originally inherent or implied power, now in UCPR r 25.11. A limited exception to the general rule that a plaintiff must obtain his judgment and then enforce it

  1. State Law: Freezing orders can be granted by court under UCPR r 25.11. ( UCPR does not affect the common law or inherent jurisdiction of the court to grant Mareva injunctions: r 25.15; Jackson v Sterling; Cardile.)

  2. Requirements under r 25.11(1): The court may make an order (a "freezing order"), upon or without notice to a respondent, 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: r 25.11(1)

    1. Eg. May be order restraining respondent from removing any assets located in or outside Australia or from disposing or dealing with or diminishing the value of those assets: r 25.11(2) UCPR

    2. In order to see whether the discretion should be exercised and requirements have been met we can look to the common law (eg Jackson v Sterling; Cardile )

  3. What the order can be:

    1. Freezing order under r 25.11(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. Can be against a third party or prospective judgment debtor: r 25.14

    2. Ancillary orders under r 25.12: Court can make an order ancillary to freezing order as the court considers appropriate. Including eg: r 25.12(2)(a), eliciting information relating to assets relevant to freezing order or prospective freezing order; r 25.12(2)(b) determining whether the freezing order should be made.

  4. Who order can be against: Can be against a respondent who is not a part to proceeding in which substantive relief is sought against: r 25.13 UCPR

    1. “An application for a freezing order or an ancillary order may be served on a person who is outside Australia (whether or not the person is domiciled or resident in Australia) if any of the assets to which the order relates are within the jurisdiction of the court”: r25.16.

More specific ways in which the court’s power is regulated:

  1. Orders against judgment debtor or prospective judgment debtor or third party: under r 25.14 – but nothing in these requirements affects the ability of the court to make an order if it is in the interests of justice to do so: r 25.14(6)

    1. R 25.14(4): The court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur:

(a) the judgment debtor, prospective judgment debtor or another person absconds,

(b) the assets of the judgment debtor, prospective judgment debtor or another person are:

(i) removed from Australia or from a place inside or outside Australia, or

(ii) disposed of, dealt with or diminished in value

  1. R 25.14(5) enshrines Cardile: The court may make a freezing/ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a "third party") if the court is satisfied, having regard to all the circumstances, that:

(a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because:

(i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or

(ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or

(b) a process in the court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.

  1. Transnational freezing orders:

    1. Or when applicant has good arguable case on cause of action justiciable in another court (r 25.14(1)(b)) and when there is a sufficient prospect that the judgment will be registered or enforced by the other court (r 25.14(3)) court can make a freezing order if satisfied under r 25.14(5):

      1. R 25.14(5)(a): danger that prospective judgment will be wholly/partly unsatisfied because a third party exercising a power of disposition over assets.
        OR

      2. R 25.14(5)(b): a process that may...

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