Order 37A - Freezing orders Flashcards
37A.01 Definitions
Ancillary order has meaning given per 37A.03(1)
another court means court outside Australia or court in Australia other than the Court;
Applicant means person applying for freezing order/ancillary order;
freezing order has the meaning given by r 37A.02(1);
respondent means a person against whom freezing order or an ancillary order is sought or made.
37A.02 Freezing order (for purpose of preventing frustration or inhibition of Court’s process by seeking to meet danger that (prospective) judgment will be unsatisfiable; restraining from removing assets in/out of Australia or disposing/dealing/with/diminishing their value)
Form 37AA - supporting affidavits to address info re judgment or basis/amount of claim; nature/value of R’s assets in/out of Australia as far as known; 37A.05 matters; identity of any other person who could be affected
(1) Can make FO on or w/o notice to respondent, for purpose of preventing frustration or inhibition of Court’s process by seeking to meet danger that (prospective) judgment will be unsatisfiable
(2) FO may be an order restraining a respondent from removing any assets located in or outside of Australia or from disposing of, dealing with or diminishing the value of those assets.
(3) Form 37AA (4) Court shall regard freezing order PN
(5) Supporting affidavits shall, as far as possible, address the following:
● (a) Info about the judgment that has been obtained or if none yet, the following info re: cause of action
○ (i) Basis of claim; (ii) Amount of claim (iii) If made wo notice to resp, app’s knowledge of any possible defence
● (b) Nature and value of R’s assets so far as are known, within and outside Australia
● (c) matters in 37A.05
● (d) ID of any other person who may be affected by the freezing order and how
37A.03 ancillary orders (can make any thought appropriate - eg to elicit info re: relevant assets)
(1) court can make ancillary order to FO or prospective FO as court considers appropriate (2) Eg for the purpose of (a) eliciting information re: relevant assets and (b) determining whether the FO should be made. E.g. order for disclosure of assets information
37A.04 Respondent need not be party to proceeding
The Court may make a freezing order or an ancillary order against a respondent, whether or not the respondent is a party to a proceeding in which substantive relief is sought against the respondent.
37A.05 Order against judgment debtor or prospective judgment debtor or third party (if judgment given in favour/or applicant has good arguable case; Court may make a FO/ancillary order/both against (prospective) judgment debtor if Court is satisfied, having regard to all circs, that there is danger that (prospective) judgment of Court will be wholly/partly unsatisfied)
(1) Rule applies if (a) judgment given in applicant’s favour by (i) the court (ii) another court, where (2) applies OR (b) applicant has good arguable case on an accrued/prospective CoA that is justiciable in (i) Court (ii) another court, where (3) applies
(2) applies to judgment if sufficient prospect it will be registered in or enforced by this court
(3) applies to COA if (a) sufficient prospect other court will give favourable judgment; and (b) sufficient prospect judgment will be registered in or enforced by this court
(4) Court may make a FO/ancillary order/both against (prospective) judgment debtor if Court is satisfied, having regard to all circs, that there is danger that (prospective) judgment of Court will be wholly/partly unsatisfied because any of following might occur—
(a) the (P)JD, or another person absconds; or
(b) the assets of the JD, PJD, or another person are—
(i) removed from Australia or from place inside/outside Australia; or
(ii) disposed of, dealt with or diminished in value.
(5) The Court may make a FO or an AO or both against a person other than a (P)JD (a third party) if the Court is satisfied, having regard to all the circumstances, that—
(a) there is a danger that a judgment or PJ of the Court 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 (P)JD; or
(ii) The TP’s in possession of, or in position of control or influence concerning, assets (including claims and expectancies) of (P)JD; or
(b) a process in the Court is or may ultimately be available to the applicant as a result of a (P)judgment of the Court, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.
(6) Nothing in this Rule affects the power of the Court to make an FO or an anc order if the Court considers it’s in the IOJ to do so
37A.06 jurisdiction not limited
Nothing in this Order limits the inherent, implied or statutory jurisdiction of the Court to make a freezing order or an ancillary order.
37A.07 Service
Per the note: App for FO or ancillary order may be served on person outside of Australia (whether/not domiciled/resident in Australia) if any of assets to which order relates are within the jurisdiction of the Court.
FO (a) shall be authenticated under r 60.02(1)(b) (b) when served, shall be served with copy of (i) summons or draft summons (ii) material (other than confidential info) relied on by applicant at hearing when order made (iii) transcript or if none is available a note of any oral allegation of fact made / oral submission put to the court
(iv) OM or draft OM produced to court
37A.08 costs (any appropriate order, including costs of person affected by FO/AO)
(1) Court can make any costs order as appropriate in relation to FO
(2) can include costs of any person affected by FO or ancillary order
37A.09 Application to be heard by Judge of the Court
Judge of the Court
