Mareva order - Lecture notes special catch up lecture PDF

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A small summary of mareva orders...

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Mareva order Are a form of injunction provided in very specific circumstances - Are an asset freezing order - Is prohibitory Mareva Caompania Naviera v International Bulk Carriers The plaintiff were suind for unpaid funds, the D had substantial funds in a London bank. The A made an ex parte application (an urgent application made without notice to the other side of the hearing) the application was made on terms of restraining the D from using the assets present within the jurisdiction, with the purpose of insuring that there were funds available in the vent the P were awarded damages at trial. The court granted the application on the basis that the P might suffer grave injustice if the D transferred the assets outside of the jurisdiction. Having the assets located outside the jurisdiction might make it very difficult to enforce any later subsequent judgment in favour of the plaintiff. This means that the point in suing to obtain damages for breach (unpaid charges) would in fact be pointless. The P might win and be awarded damages but on a practical level the P would never receive any money. This order was given to stop the D from removing their funds to outside the jurisdiction of the court. Cardile v LED builders Court preferred order over injunction. Referred to as a freezing order.

Jackson v Sterling Industries To stop the D from moving assets to deprive the P of judgement. The power to order a mareva order is done to protect the courts ability to ensure justice A Mareve order is directed towards the D. and that they are designed to prevent the defendant from disappointing or removing assets from the jurisdiction. These application are interlocutory in nature. The order is awarded prior to the dispute. It is an ancillary order priot to the proceedings. It restrains the defendant from committing particular acts, and is done to preserve the staus quo before judgement is given. There must be a strong prima facie case. A mareva order is an infringement on a right to buy and sell assets. The Burden on the P has to be strong on light of theee previous statemtn. The evidence must say that the D is likely to dispose of assets, and the frustration of the courts proceedings. Because the order is on an ex parte basis. Council appearing must disclose all aspects, and allow the court to determine what is relevant. The courts concern is to ensure that there is a frustration in the courts proceedings. The court could specift proceedings must be made within a certain time span. Hayden v Teplitzky (1997) 74 FCR 7 Is it necessary to show a risk of disposal of assets as an objective fact or whether it needed to be established that the D had a subjective intention (aim) to defeat the courts jurisdiction? It would be more difficult to establish the D actual subjective

intention or aim. As aopposed to an objective act from the evidence. It appears that the courts now look to the affect of the conduct, as opposed to the state of mind. Third parties - Cardile v LED Builders: LED wanted a mareva order on a third party. The majority said that in relation to third parties. The third party must hold or is using or is exercising a power of disposition over or must be in possession of assets of the potential judgment debtor. (i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of assets, including ‘claims and expectancies’, of the judgment debtor or potential judgment debtor; or (ii) some process, ultimately enforceable by the Courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor A Mareva order may be given with other orders

Uniform civil procedure rules ch 8, part 2. Supreme court of qld act 1991.

UNIFORM CIVIL PROCEDURE RULES 1999 - REG 260A Freezing order 260A FREEZING ORDER

(1) The court may make an order (a "freezing order" ) 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. (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. This order is not designed to make the plaintiff a creditor, they remain as a unqalified creditor. CJ Gleeson,

Anton Pillar order A form of search order

- Is mandatory Allows a person to enter and search, they can take samples. Make copies of items.  Anton Pilllar v Manufacturing Process First, there must be an extremely strong prima facie case. Secondly, the damage, potential or actual, must be very serious to the applicant. Thirdly, there must be clear evidence that the Defendant’s have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter parties can be made. This has been codified in 261B UCPR. It is done to gather and protect information/items to help with the plaintiff’s case. This is NOT a search warrant. Not allow forceful entry, failiure to comply make it a failure of a court order. The plaintiff must give an undertaking as to damages for an application for an anton pillar order. The court will not assume that persons are normally going to destroy evidence, - Innocence is presumed firstly. This is not a investigatory order, more than mere suspicion is needed. Only items in the court order may be seized. (you cant just go onto the property and search through everything. Must have some relevance to the case (relevance to the application made)). The defendant may argue privilege against self-incrimination. 261A SEARCH ORDER

The court may make an order (a "search order" ), in any proceeding or in anticipation of any proceeding in the court, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence which is, or may be, relevant to an issue in the proceeding or anticipated proceeding. The order can be wide in scope, but the search cannot go outside the scope of the order. There has to be evidence that there is a real risk of evidence being destroyed....