You’ve just been served with a freezing order. Your bank accounts are frozen. Your ability to deal with assets has been stopped in its tracks. You have hours — not days — to respond effectively.
Most guides on freezing orders are written from the plaintiff’s perspective: how to obtain one, how to protect your assets. This guide is different. It is written for respondents — the party on the receiving end. It explains what a freezing order means, what your immediate obligations are, and how to challenge or vary it.
If you have been served with a freezing order, call Boss Lawyers immediately on 1300 267 711. Time is critical.
What Is a Freezing Order (Mareva Injunction)?
A freezing order — historically called a Mareva injunction, after the English case Mareva Compania Naviera SA v International Bulkcarriers SA [1975] — is one of the most powerful interim remedies available in Australian courts. It prohibits a party from disposing of, dealing with, or diminishing the value of their assets, up to a specified maximum amount.
In Queensland, freezing orders are governed by the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), specifically Part 8 Division 2, and the Practice Direction No. 2 of 2012 (Supreme Court). The Federal Court has its own regime under the Federal Court Rules 2011.
A freezing order can cover:
- Bank accounts (often all accounts are frozen up to the specified amount)
- Real property (a caveat may also be lodged)
- Shares, investments, and other financial assets
- Business assets and equipment
- Assets held in the name of third parties (where the applicant can show those are effectively the respondent’s assets)
How Are Freezing Orders Obtained Without Notice?
Freezing orders are almost always obtained ex parte — meaning without notice to the respondent. The applicant goes to court, usually urgently, and presents their case to a judge without you being there to respond.
This is not a procedural irregularity — it is intentional. The purpose is to prevent you from dissipating assets before the court can act. The law recognises that giving advance notice would defeat the purpose.
But this creates serious obligations on the applicant. In exchange for being heard without you present, the applicant must make full and frank disclosure to the court of all material facts — including facts that might be adverse to their application. This duty is strict. Failure to make full and frank disclosure is one of the primary grounds on which a freezing order can be set aside.
The applicant must also provide an undertaking as to damages — a promise to compensate you if the freezing order turns out to have been wrongly granted.
What the Order Means for You Immediately
Once served, the freezing order takes immediate effect. Breaching it — whether deliberately or inadvertently — can constitute contempt of court, which carries serious consequences including fines and imprisonment.
What the order typically does and does not prohibit:
- Prohibited: Transferring, selling, charging, or otherwise dealing with covered assets up to the specified amount
- Prohibited: Moving assets out of jurisdiction
- Usually permitted: Ordinary living expenses (up to a specified weekly/monthly amount)
- Usually permitted: Legal costs for defending the proceedings and the freezing order itself
- Usually permitted: Ordinary course of business transactions (often requires specific carve-out)
Read the order carefully. The specific terms control. If you are uncertain whether a proposed transaction is permitted, obtain legal advice before proceeding.
Your Immediate Steps — The First 24–48 Hours
The steps you take in the immediate aftermath of service matter greatly to your ability to challenge the order and protect your position.
Step 1: Contact a Lawyer Immediately
This is not a matter you can manage yourself. Freezing order litigation is urgent, technical, and high-stakes. You need a commercial litigation lawyer with experience in interlocutory proceedings — urgently.
Step 2: Read the Order Carefully
Understand exactly what is and is not frozen. What assets are covered? What is the monetary cap? What carve-outs apply (living expenses, legal costs)? When is the matter listed for the return date hearing?
Step 3: Preserve All Records
Do not destroy, delete, or alter any documents related to the assets or the underlying dispute. Courts take a very serious view of document destruction after the commencement of litigation — it may constitute contempt and will significantly damage your credibility with the court.
Step 4: Do Not Transfer Assets
Do not move, transfer, or deal with any assets covered by the order. Even if you believe the order is wrong or was improperly obtained — do not breach it. The correct response is to apply to the court to set it aside or vary it, not to act in contempt.
Step 5: Identify the Return Date
Ex parte freezing orders are made on an interim basis only. There will be a “return date” — typically within a few days to a week — when the matter comes back before the court and you have the opportunity to be heard. Your lawyer needs to be ready by that date.
Grounds to Challenge a Freezing Order
Freezing orders can be challenged on a number of grounds. A successful challenge results in the order being discharged (set aside entirely) or varied (its scope reduced).
1. Failure to Make Full and Frank Disclosure
Because the applicant obtained the order without you being present, they owe the court a duty to disclose all material facts — including those that might have counted against granting the order. This duty is strict and unforgiving.
If the applicant failed to disclose material facts — a competing legal point, a defence you have, evidence that weakens their case — the court may discharge the order, even if the applicant might otherwise have been entitled to it. Non-disclosure is one of the most powerful grounds for setting aside an ex parte order.
2. No Serious Question to Be Tried
To obtain a freezing order, the applicant must establish that there is a serious question to be tried — meaning a real (not fanciful) prospect of success on the underlying claim. If the underlying claim is clearly weak, unmeritorious, or legally flawed, the freezing order may be discharged on this basis.
3. Balance of Convenience
The court weighs the potential harm to the applicant if the order is not granted against the harm to the respondent if it is. Where the respondent can demonstrate that the freezing order is causing disproportionate harm — for example, preventing a legitimate business from operating, causing serious financial hardship, or affecting third parties — the balance of convenience may favour discharge or variation.
4. No Real Risk of Dissipation
To obtain a freezing order, the applicant must show a real risk that, if not restrained, you will deal with your assets to make yourself judgment-proof. This is not presumed — it must be demonstrated by evidence. If you can show that there was no credible risk of dissipation (for example, you are a long-established business with significant fixed assets and no history of asset movements), the foundation for the order may be undermined.
5. The Undertaking as to Damages
If the freezing order is set aside or the applicant fails in their underlying claim, the undertaking as to damages means the applicant must compensate you for any loss caused by the order. This is an important protection — make sure your lawyer preserves evidence of your losses caused by the freezing.
Applying to Vary a Freezing Order
Even if you cannot discharge the order entirely, you may be able to vary it to reduce its impact. Common variations sought include:
- Living expenses: An order allowing a specified weekly or monthly amount for ordinary living expenses — if the order doesn’t already include this carve-out
- Legal costs: A carve-out to allow you to fund your legal representation in the proceedings and any challenge to the freezing order
- Business trading: An order permitting ordinary course of business transactions, where a business cannot operate under the existing terms
- Substitution of assets: Replacing one form of frozen asset with another (for example, providing a bank guarantee or security instead of freezing a working account)
- Geographic scope: Limiting the order to Australian assets where a worldwide order was obtained
Applications to vary are heard on short notice and must be supported by evidence of the hardship caused and the basis for the variation sought.
The Cross-Undertaking in Damages: Your Right to Compensation
Every ex parte freezing order requires the applicant to give the court an undertaking that they will compensate the respondent for any loss or damage caused by the order if it turns out the order should not have been made. This is called the cross-undertaking in damages.
If you successfully challenge the order — or if the applicant ultimately fails in their underlying claim — you can seek an order enforcing the undertaking and claiming compensation for:
- Business losses caused by inability to trade or deal with frozen assets
- Legal costs of challenging the order
- Reputational damage (in some circumstances)
- Loss of opportunity costs
The strength of the undertaking depends on the financial standing of the applicant. Courts sometimes require applicants to fortify the undertaking — by providing security (such as a bank guarantee) — if there is doubt about their ability to pay any eventual compensation. This is another avenue your lawyer should consider.
Third Party Assets and the “Notified Freezing Order”
Freezing orders can sometimes extend to assets held by third parties — family members, associated companies, trusts — if the court is satisfied those assets are effectively the respondent’s. If you believe your assets have been incorrectly captured (for example, assets that are genuinely the property of a third party have been frozen), your lawyer needs to challenge this aspect of the order specifically.
Third parties served with notice of a freezing order who then deal with covered assets may themselves be in contempt of court. If you are a third party who has received notice of a freezing order affecting assets you hold, seek legal advice immediately.
How Boss Lawyers Acts for Respondents
Boss Lawyers has experience acting for respondents in freezing order proceedings. We understand that when you’ve been served with a freezing order, every hour matters. Our approach:
- Immediate triage. We read the order, identify the return date, and assess the grounds for challenge within hours of being instructed.
- Forensic review of the application. We examine the applicant’s affidavit material for full and frank disclosure failures and weaknesses in the underlying claim.
- Urgent variation if needed. Where the order is causing immediate hardship, we move quickly to vary it before the return date to allow for living expenses, legal costs, or business trading.
- Prepare for the return date. We build the evidence base for discharge or variation and prepare for the contested hearing.
- Preserve your damages claim. If the order is wrongly granted, we document and preserve your losses for enforcement of the cross-undertaking.
Mark Harley has appeared in commercial injunction proceedings including freezing order applications at both the Supreme Court and Federal Court of Australia. If you need someone who knows how to fight this effectively, call us.
Frequently Asked Questions
What is a freezing order (Mareva injunction) in Queensland?
A freezing order (historically called a Mareva injunction) is a court order that prohibits a party from disposing of, dealing with, or diminishing the value of their assets up to a specified amount. It is used to prevent a party from making themselves judgment-proof before a court judgment can be obtained. In Queensland, freezing orders are governed by the Uniform Civil Procedure Rules 1999 (Qld) and the Supreme Court’s practice directions. They are almost always obtained ex parte — without notice to the respondent.
Can I challenge a freezing order if it was obtained without me being present?
Yes. Ex parte freezing orders are made on a temporary basis, and the respondent has the right to appear at the return date to contest the order. Grounds for discharge include failure by the applicant to make full and frank disclosure to the court, absence of a serious question to be tried on the underlying claim, no real risk of asset dissipation, and the balance of convenience favouring discharge. You should obtain legal advice immediately to prepare for the return date hearing.
What happens if I breach a freezing order?
Breaching a freezing order constitutes contempt of court, which is a serious matter. Consequences can include fines, sequestration of assets, and in serious cases, imprisonment. Even if you believe the order was wrongly made, the correct course of action is to apply to the court to vary or discharge it — not to breach it. If you are uncertain whether a proposed transaction is covered by the order, obtain legal advice before proceeding.
Can I access money to pay for a lawyer if my accounts are frozen?
Most freezing orders include carve-outs for reasonable legal costs to defend the proceedings and the freezing order itself. If the order you have been served with does not include this carve-out, you can apply urgently to the court to vary the order to include it. Courts recognise that preventing a respondent from accessing legal representation would be fundamentally unjust. Your lawyer can make this application on short notice if required.
What is the cross-undertaking in damages and how does it protect me?
The cross-undertaking in damages is a promise by the applicant to compensate the respondent for any loss or damage caused by the freezing order if it turns out the order should not have been made — for example, if the applicant ultimately fails in their underlying claim or if the order is discharged for failure to disclose. If the applicant’s financial standing is uncertain, you can apply for the undertaking to be fortified by security such as a bank guarantee. The undertaking is a significant protection for respondents facing wrongly-obtained freezing orders.
Served with a Freezing Order? Call Us Now
If you have been served with a freezing order, the clock is already running. You need specialist commercial litigation advice today — not tomorrow.
Call Boss Lawyers on 1300 267 711 or contact us through our contact page. We are based at Level 27, Santos Place, 32 Turbot Street, Brisbane QLD 4000. We act in urgent matters and can move quickly when you need us to.
See also our broader guide to commercial litigation in Queensland.
This is general information only and is not legal advice. You should obtain professional advice specific to your circumstances before taking any action. The urgency of freezing order proceedings means you should seek advice immediately upon service.
Author: Mark Harley
Principal Solicitor, Boss Lawyers Pty Ltd
B Com, LLB (Hons), LLM
17+ years experience in commercial litigation and injunction proceedings
