Interlocutory Injunctions (Freezing/ Search) Flashcards
(33 cards)
What is an interlocutory application?
An application where the order sought will not determine the ultimate question between the parties.
Who has the power to set aside, carry, or discharge the interlocutory orders?
The originating court.
Can a court entertain a second application for the same relief once an application has already been refused?
Yes. BUT if there are no change in circumstances, a second application may be considered an abuse of process and dismissed.
How do you apply for interlocutory application?
What Rule?
UCPR Rule 31
FCR 17.01
In an interlocutory application, what form should evidece be given?
Affidavit.
In QLD what must a party do before filing an interlocutory application?
Must state in a letter to the other party:
* The applicants complaint
* A brief statement of the facts
* Why the applicant should have the relief
* A time (at least 3 business days) for the respondet to reply to the letter
* That the letter was written under CH11/P8 of the UCPR: Rule 444
Who does the letter of notice need to be sent to?
Every person who could be affected by the relief sought UNLESS notification would cause the applicant undue delay, expense or inconvenience, or would unduly prejudice the applicant.
What does a respondent need to do if they recieve a letter of notice?
Reply. Stating if/what they propose to do in response to the complaint. OR if applicable why the applicant should not have the relief sought.
Response should be sent to every person who should have recieved the applicants letter, UNLESS that would cause the respondent undue delay, expense or inconveniece, or would unduly prejudice the respondent.
Who needs to be served with the interlocutory application?
Any party who would be affected by the relief sought.
UCPR Rule 41
FCR 17.01
Can the court dispense with service?
Yes, if urgency or irreparable damage would be done.
When can an applicant apply to court for interlocutory injunction?
Only after recieving respondent’s reply OR if respondent fails to comply with the nominated time.
Rule 447
Give 3 examples of interlocutory injunction.
- Mareva Injunction (Freezing)
- Anton Pillar (Search)
- Interim injunction
Under which rule can the court make a freezing order?
UCPR Rule 260A
Why would the court make a freezing order?
To preserve an identifiable legal or quitable right.
Rule 260A (1)
When would it be proper to make a freezing order?
If:
a. Prima facie case
b. Plaintiff will suffer irreparable damage (compensation inadequate).
c. Inconvenience/ injury to the plaintiff outweighs injury to the defendant if granted.
What does it mean to have ‘prima facie’ case?
‘if the evidence remains as it is, there is a probability that at the trial of the action, the plaintiff will be entitiled to the relief’
Beecham Group Pty Ltd
Does a respondent to application for freezing order need to be a party to the proceeding?
No. May be granted whether or not the respondent is a party to an existing proceeding.
Rule 260C
Which case deals with freezing orders? (Mareva Order)
Vaughan v Buongiorno
Explain the rationale in the case of Vaughan v Buonjiorno.
Re: Beecham
There is a reminder that the establishment of a prima facie case depeds upon the proposition that, if the evidece remains as it is, the plaintiff may obtain success at the trial.
Evidence in this application largely inadmissable.
Application dismissed
Costs awarded to defendant.
Explain the concept ‘ damages as inadequate remedy’.
Extent to which damage to plaintiff can be cured by payment of damages rather than granting of injunction (Castlemain Tooheys v South Australia)
Key consideration is whether irreparable injury will occur if injunction not granted. Must show this (Goyal v Chandra)
Exparte applications for Injunction. Are they granted?
Usually only for short period until all parties can be heard.
Urgency is the first and most basic requirement.
Can establish by showing that even short delay or other party will cause harm. i.e the defendant might destroy evidence or otherwise frustrate the proceeding (Ex parte Island Records).
What is the Practice Direction that deals with Freezing Orders?
Practice Direction 1 of 2007
What is the principle in the case Mareva Compania Naviera SA v International Bulk Carriers SA?
The court has the inherent jurisdiction to prevent a party from disposing of assests with the intention of frustrating the enforcement of a judgment.
What must the applicant establish for Mareva Order?
- An arguable case against the defendant; AND
- A danger that prosepctive judgmenet will be wholly or partially unsatisfied by defendant removing, disposing of or dealing with the assets.
