Home Publications Practice and Procedure – Freezing Orders

Practice and Procedure – Freezing Orders

2 May 2025

Litigation, Disputes & Investigations

Freezing orders are also known as Mareva orders. Mareva orders derive their name from the case of Mareva Compania Naviera SA v Int’l Bulkcarriers SA (The Mareva) [1980] 1 All ER 213 and are now referred to as freezing orders to reflect the use of that term in the rules of the Court (Freezing Orders). Freezing Orders are an important tool in ensuring that assets that may be subject to a judgment or order in favour of the plaintiff are not disposed of by the defendant to proceedings.loss?

In the recent case of QBE Insurance (Australia) Limited v Robinson [2025] WASC 78, QBE Insurance (Australia) Limited (Plaintiff) commenced proceedings, by an originating process filed on 6 March 2025, against the first and second defendant (Defendants)¹:

under s 182 of the Corporations Act 2001 (Cth);
in the Court’s common law jurisdiction for deceit and money had and received, and in the Court’s equitable jurisdiction for breach of fiduciary duty and equitable fraud;
under O 52A of the Rules of the Supreme Court 1971 (WA); and
in the Court’s inherent jurisdiction.

The Plaintiff claimed, “that an internal investigation by it identified 17 transactions between March 2023 and December 2024 (with a total monetary amount of $397,947) whereby the first defendant directed plaintiff funds to be paid to accounts in the first defendant’s name or to her benefit (for instance by directing funds to be paid to the account of a Tesla dealership to enable her or the second defendant to acquire a Tesla motor vehicle). The plaintiff also said that the payments were made by the first defendant re-opening paid out claims and purporting to pay out those claims again, but instead of paying out the claimants, the first defendant caused the funds to be paid to accounts in the first defendant’s name or to her benefit.”²

Ex Parte application for interlocutory relief

In light of the above, the plaintiff sought a freezing order under O 52A of the Rules of the Supreme Court 1971 (WA) (RSC).

The Plaintiff sought orders “freezing the first defendant’s assets pending trial, restraining the second defendant from disposing of the Tesla vehicle registered in his name, and various final orders to, in effect, compensate the plaintiff for its losses.”³

The Plaintiff “pressed the Court to order that the first defendant

not remove from Australia or in any way dispose of, deal with or diminish the value of any of her assets in Australia up to the unencumbered value of $600,983.55; and
the second defendant not dispose of the Tesla Model Y vehicle registered in his name.”⁴

Principles of freezing orders

Jurisdiction and Power

The Court has the power to make Freezing Orders:

pursuant to its inherent jurisdiction; and
under s16(1)(d)(i) of the Supreme Court Act;⁵

O 52A r 2(1) of the RSC allows the court to make a freezing order to prevent the frustration or inhibition of the Court’s processes by preventing, or attempting to prevent, the risk that a judgment or prospective judgment will become wholly or partially unsatisfied.⁶

O 52A r 3(1) of the RSC allows the court make an order ancillary to Freezing Orders as the court considers appropriate, including orders eliciting information relating to assets relevant to Freezing Orders.⁷

O 52A r 5 of the RSC allows the Court to make Freezing Orders against a prospective judgment debtor if the Court is satisfied that there is a good arguable case and there is a danger that a prospective judgment will be wholly or partially unsatisfied because:

the judgment debtor, prospective judgment debtor or another person absconds; or
the assets of the judgment debtor, prospective judgment debtor or another person are:

removed from Australia or from a place inside or outside Australia; or
disposed of, dealt with or diminished in value.

The Exercise of Jurisdiction

Importantly, at [35], the Court stated that the purpose of Freezing Orders is to prevent frustration or abuse of the process of the Court, not to provide security in respect of a judgment or order, nor to substitute for the use and methods of execution.

The Court expressed that they must be satisfied of the following before the Court’s discretion is enlivened:

First, that the plaintiff has a good arguable case against the defendants on an accrued cause of action that is justiciable in the Court.⁸
Secondly, that there is a danger that the prospective judgment will be wholly or partly unsatisfied because assets of the defendants might be removed or otherwise disposed of, dealt with or diminished in value;⁹ and, because the remedy is discretionary;
The strength of the plaintiff’s case, the danger of frustration of a prospective judgment, the balance of convenience and any other relevant discretionary factors.¹⁰

Application and Determination by the Court

Good arguable case

At [42] the Court outlined that:

“On the evidence before me, I am satisfied that the plaintiff has demonstrated that it has a good arguable case against the first defendant and the second defendant on an accrued cause of action that is justiciable in the Court. Through the affidavits read, particularly those of Ms Rooke, the plaintiff has established that it has a reasonably arguable case on legal and factual matters.”

The Court went on to state that it was submitted that the Plaintiff’s causes of action against the first defendant are at least:

breach of section 182 of the Corporations Act;
breach of fiduciary duty;
money had a received; and
deceit.

Danger that the prospective judgment will be wholly or partially unsatisfied

The Court stated that the affidavit evidence on the Plaintiff strongly suggested apparent dishonesty on the part of the first defendant.¹¹ The Plaintiff also submitted that because the vast majority of the money the first defendant was alleged to have stolen was cash, and the only other identifiable asset was the Tesla vehicle, there was a real danger that the first defendant would be able to readily dissipate the assets that could be utilised to satisfy any judgment obtained by the Plaintiff.¹² That is, that if the first defendant was dishonest enough to misappropriate funds and conceal the misappropriations, then it is reasonable to infer that once becoming aware of the claims against her, she might have sought to put her assets out of the reach of the Plaintiff.¹³

As such, the Court as satisfied, to the requisite degree, that there was a danger that the prospective judgment would be wholly of partially unsatisfied.¹⁴

Discretion

The Court noted that, “There may be discretionary considerations which mitigate against the granting of a freezing order, such as delay in bringing an application, or a lack of candour in the materials placed before the Court.”¹⁵

The Court noted that there was delay on the part of the Plaintiff’s in bringing this application.¹⁶

The Court also noted that the exercise of discretion required a balancing of interests.¹⁷ The Court determined that, “in all of the circumstances, I find that it is appropriate to grant the freezing orders ex parte. I am prepared to do so on the basis that a prompt return date is fixed, that the defendants have liberty to apply at short notice, and (following an exchange with counsel for the plaintiff) the orders include the usual carve outs for ordinary living expenses and reasonable legal expenses. In the exercise of discretion, I have also weighed the protection afforded to the defendants by the undertaking as to damages.”¹⁸

The Court made freezing orders against the Defendants for the above reasons.¹⁹

Lavan comment

When making a Freezing Order application, the applicant must establish a compelling case. Freezing orders may be refused if it would be likely to interfere substantially with the rights of an innocent third party.

It is important to remember that Freezing Orders may be granted at any stage of the proceedings and even after trial. The assets to which it applies may include all forms of real and personal property, including choses of action. In addition, the rights of a secured creditor are unaffected by Freezing Orders and may be exercised in priority to the plaintiff’s entitlement under the order.

For further information on Freezing Orders, contact Cinzia Donald, Partner, or Kristy Yeoh, Special Counsel, in Lavan’s Litigation & Dispute Resolution Team, who have experience in obtaining and providing advice as to compliance with Freezing Orders.

Thank you to Annie Harfoushian, Solicitor, for her valuable research and assistance with this article.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.

Footnotes

QBE Insurance (Australia) Limited v Robinson [2025] WASC 78 (‘QBE v Robinson’) [2].
Ibid [12].
Ibid [21].
Ibid [4].
Ibid [34].
Ibid [34].
Ibid.
Ibid [37].
Ibid [38].
Ibid [39].
Ibid [49].
Ibid [50].
bid.
Ibid [51].
Zhen v Mo [2008] VSC 300 [30].
QBE v Robinson (n 1) [53].
Ibid [55].
Ibid [58].
Ibid [61].