A Mareva injunction, also known as a freezing or asset protection order is a type of interlocutory injunction which prevents a defendant/respondent from dealing with the whole or part of their assets (i.e. by moving assets abroad or dissipating them) while legal proceedings are ongoing. Mareva injunctions are therefore used to protect the plaintiff’s potential right to access an effective and just remedy at the conclusion of proceedings, ensuring that court process and justice are respected.
Mareva orders are legislated for under rule 25.11 of the Uniform Civil Procedure Rules 2005 (NSW). The power to make such an order is derived from the inherent jurisdiction of the Supreme Court. A freezing order may be granted where the circumstances suggest there is a danger of the defendant absconding, a danger of the assets being removed from the jurisdiction, or a danger of the assets being disposed of or otherwise ‘dealt’ with within the jurisdiction to the effect that the plaintiff will not be able to get the future judgment satisfied.
To obtain a Mareva injunction, the applicant should (UCPR rule 25.14):
- Prove he or she has had judgment given in favour, or has a good arguable case;
- Prove the judgment is in danger of being unsatisfied in whole or in part due to the removal or disposal or dealing of the assets (in the context of an order against a judgment debtor); or
- Prove the judgment is in danger of being unsatisfied in whole or in part where a third-party exercises control and a power of disposition over the assets (in the context of an order against a party other than a judgment debtor).
The Court also maintains its discretion to issue a Mareva injunction where it would be in the interests of justice to do so.