Someone Is Dissipating Company Assets and You Need to Freeze Them Out
You have discovered that money is leaving the business and it should not be. An employee has been spending on the company credit card. A director is moving funds to a personal account. A debtor is selling assets before you can enforce a judgment. When assets are being dissipated, every hour matters. A freezing order (historically known as a Mareva injunction) is an urgent court order that prevents a person from dealing with their assets. It can be obtained without notice to the other party in cases of genuine urgency.
What You Need To Know
A freezing order prevents a person from dealing with, disposing of or diminishing the value of their assets up to a specified amount. It can cover bank accounts, real property, shares, vehicles and other assets.
Applications can be made ex parte (without notice to the other party) where there is a real risk that giving notice would cause the respondent to move or hide assets before the order is made.
To obtain a freezing order, you must show a good arguable case on the underlying claim and a real risk that the respondent will dissipate assets to defeat a prospective judgment. The risk must be more than theoretical.
Freezing orders are governed by the Uniform Civil Procedure Rules 1999 (Qld) in the Queensland Supreme Court and by Division 7.4 of the Federal Court Rules 2011 in federal proceedings.
The applicant must give an undertaking as to damages. This means that if the freezing order is later found to have been wrongly obtained, the applicant may be liable to compensate the respondent for any loss caused by the order.
Freezing orders typically require full and frank disclosure of all material facts, including facts that may be unfavourable to your case. Failure to make full disclosure can result in the order being set aside.
What To Do Right Now
Secure the evidence immediately
Before you do anything else, gather and preserve the evidence of what has happened. Bank statements, credit card statements, transaction records, emails, text messages, CCTV footage. If the evidence is on company systems, ensure it is backed up and cannot be deleted.
Quantify the loss and identify the assets
The court will want to know the amount at stake and what assets the respondent holds. Identify bank accounts, property, vehicles, shares and any other assets. The freezing order will be capped at the amount of your likely claim.
Assess the urgency
Is there evidence that the respondent is actively moving money or likely to do so? The court will only grant an ex parte freezing order if there is genuine urgency. If the dissipation has already stopped and there is no immediate risk, you may need to proceed on notice.
Prepare for the undertaking as to damages
The court will require you to undertake to compensate the respondent if the order turns out to be wrong. Consider whether your company has the financial capacity to honour this undertaking, as the court may ask for evidence.
Engage a litigation lawyer immediately
Freezing order applications are technically demanding and time-sensitive. The affidavit evidence must meet the threshold for full and frank disclosure. The draft order must comply with the applicable rules. Getting it wrong can mean the order is refused or later set aside.
How We Can Help
We apply for freezing orders in the Queensland Supreme Court and the Federal Court on behalf of businesses and directors seeking to preserve assets. We prepare the supporting affidavit evidence, draft the proposed order, appear on the urgent application and manage the return date hearing. We also defend applications for freezing orders where they are brought against our clients. Where the underlying conduct involves criminal offences such as fraud or theft, we coordinate with the police investigation where appropriate.
This is urgent. Assets can be moved within hours.
Don't wait until your options narrow.
We can usually assess your position within a single consultation. Call us or send an enquiry and we will get back to you promptly.