Uniform Civil Procedure Rules 2005
Current version for 9 April 2020 to date (accessed 6 June 2020 at 11:17)
Part 25
Part 25 Interim preservation
Division 1 General
25.1   Application
(1)  This Part applies to proceedings in the Supreme Court, the Industrial Court, the Land and Environment Court or the District Court.
(2)  Divisions 2 and 3, but not this Division, also apply to proceedings in the Dust Diseases Tribunal.
25.2   Order in urgent case before commencement of proceedings
(cf SCR Part 28, rule 1)
(1)  In an urgent case, the court, on the application of a person who intends to commence proceedings, may do any of the following—
(a)  it may make any order which the court might make in proceedings on an application for a writ of habeas corpus ad subjiciendum,
(b)  it may make any order for the custody of a minor,
(c)  it may grant any injunctive relief, including relief in the nature of a freezing order under Division 2 (Mareva relief) or a search order under Division 3 (an Anton Piller order),
(d)  it may make an order extending the operation of a caveat under—
(i)  the Real Property Act 1900, or
(iii)  the Offshore Minerals Act 1994 of the Commonwealth,
(e)  it may appoint a receiver,
(f)  it may make an order for the detention, custody or preservation of property under rule 25.3,
to the same extent as if the applicant had commenced the proceedings and the application were made in the proceedings.
(2)  In relation to proceedings in the Supreme Court, an application under subrule (1) may be made in any division of the Court but must, so far as practicable, be made in the division to which the proceedings that are intended to be commenced would be assigned.
(3)  A person making an application under subrule (1) must give an undertaking to the court to the effect that the applicant will file originating process commencing the proceedings within such time as the court may order or, if the court makes no such order, within 48 hours after the application is granted.
25.3   Preservation of property
(cf SCR Part 28, rule 2)
(1)  In proceedings concerning property, or in which any question may arise as to property, the court may make orders for the detention, custody or preservation of the property.
(2)  An order under subrule (1) may authorise any person to enter any land or to do any other thing for the purpose of giving effect to the order.
(3)  In proceedings concerning the right of any party to a fund, the court may order that the fund be paid into court or otherwise secured.
25.4   Disposal of personal property
(cf SCR Part 28, rule 3)
If, in proceedings concerning property (other than land) or in which any question may arise as to any property (other than land), it appears to the court that—
(a)  the property is of a perishable nature or is likely to deteriorate, or
(b)  for any other reason it is desirable that the property should be sold or otherwise disposed of,
the court may make an order for the sale or other disposal of the whole or any part of the property by such person, and in such manner, as the court may direct.
25.5   Interim distribution
(cf SCR Part 28, rule 4)
If, in proceedings concerning property, it appears to the court that the property is more than sufficient to answer the claims on the property for which provision ought to be made in the proceedings, the court may allow any part of the property to be conveyed, transferred or delivered to any person having an interest in the property.
25.6   Interim income
(cf SCR Part 28, rule 5)
If, in proceedings concerning property, it appears to the court that the whole or any part of the income of the property is not required to answer the claims on the property or its income for which provision ought to be made in the proceedings, the court may allow that income or part to be paid, during such period as the court may determine, to all or any of the persons having an interest in the income.
25.7   Payment before ascertainment of all persons interested
(cf SCR Part 28, rule 6)
If two or more persons are entitled to share in a fund, the court may order or allow immediate payment to any of those persons of his or her share without reserving any part of that share to meet the subsequent costs of ascertaining any other of those persons.
25.8   Meaning of “usual undertaking as to damages”
(cf SCR Part 28, rule 7(2))
The “usual undertaking as to damages”, if given to the court in connection with any interlocutory order or undertaking, is an undertaking to the court to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the interlocutory order or undertaking or of any interlocutory continuation (with or without variation) of the interlocutory order or undertaking.
25.9   Orders may be made at any stage of proceedings
(cf SCR Part 28, rule 7(1))
Orders may be made under this Part at any stage of proceedings.
Division 2 Freezing orders
Note.
 The provisions of this Division comprise uniform rules developed under the auspices of the Australian Council of Chief Justices.
25.10   Interpretation
(cf Federal Court Rules Order 25A, rule 1)
In this Division—
ancillary order has the meaning given by rule 25.12.
another court includes a court outside New South Wales, whether inside or outside Australia.
applicant means a person who applies for a freezing order or an ancillary order.
freezing order has the meaning given by rule 25.11.
respondent means a person against whom a freezing order or an ancillary order is sought or made.
Note 1.
 The definition of judgment in the Federal Court Rules is not included above. The word is defined in section 3 of the Civil Procedure Act 2005 for the purposes of that Act and these rules.
Note 2.
 In any notice of motion for a freezing order, a party should be referred to by the appropriate expression prescribed by rule 18.3.
25.11   Freezing order
(cf Federal Court Rules Order 25A, rule 2)
(1)  The court may make an order (a freezing order), upon or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the court’s process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied.
(2)  A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.
25.12   Ancillary order
(cf Federal Court Rules Order 25A, rule 3)
(1)  The court may make an order (an ancillary order) ancillary to a freezing order or prospective freezing order as the court considers appropriate.
(2)  Without limiting the generality of subrule (1), an ancillary order may be made for either or both of the following purposes—
(a)  eliciting information relating to assets relevant to the freezing order or prospective freezing order,
(b)  determining whether the freezing order should be made.
25.13   Respondent need not be party to proceeding
(cf Federal Court Rules Order 25A, rule 4)
The court may make a freezing order or an ancillary order against a respondent even if the respondent is not a party to a proceeding in which substantive relief is sought against the respondent.
25.14   Order against judgment debtor or prospective judgment debtor or third party
(cf Federal Court Rules Order 25A, rule 5)
(1)  This rule applies if—
(a)  judgment has been given in favour of an applicant by—
(i)  the court, or
(ii)  in the case of a judgment to which subrule (2) applies—another court, or
(b)  an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in—
(i)  the court, or
(ii)  in the case of a cause of action to which subrule (3) applies—another court.
(2)  This subrule applies to a judgment if there is a sufficient prospect that the judgment will be registered in or enforced by the court.
(3)  This subrule applies to a cause of action if—
(a)  there is a sufficient prospect that the other court will give judgment in favour of the applicant, and
(b)  there is a sufficient prospect that the judgment will be registered in or enforced by the court.
(4)  The court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur—
(a)  the judgment debtor, prospective judgment debtor or another person absconds,
(b)  the assets of the judgment debtor, prospective judgment debtor or another person are—
(i)  removed from Australia or from a place inside or outside Australia, or
(ii)  disposed of, dealt with or diminished in value.
(5)  The court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the court is satisfied, having regard to all the circumstances, that—
(a)  there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because—
(i)  the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or
(ii)  the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or
(b)  a process in the court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.
(6)  Nothing in this rule affects the power of the court to make a freezing order or ancillary order if the court considers it is in the interests of justice to do so.
25.15   Jurisdiction
(cf Federal Court Rules Order 25A, rule 6)
Nothing in this Division diminishes the inherent, implied or statutory jurisdiction of the court to make a freezing order or ancillary order.
25.16   Service outside Australia of application for freezing order or ancillary order
(cf Federal Court Rules Order 25A, rule 7)
An application for a freezing order or an ancillary order may be served on a person who is outside Australia (whether or not the person is domiciled or resident in Australia) if any of the assets to which the order relates are within the jurisdiction of the court.
25.17   Costs
(cf Federal Court Rules Order 25A, rule 8)
(1)  The court may make any order as to costs as it considers appropriate in relation to an order made under this Division.
(2)  Without limiting the generality of subrule (1), an order as to costs includes an order as to the costs of any person affected by a freezing order or ancillary order.
Division 3 Search orders
Note.
 The provisions of this Division comprise uniform rules developed under the auspices of the Australian Council of Chief Justices.
25.18   Interpretation
(cf Federal Court Rules Order 25B, rule 1)
In this Division—
applicant means an applicant for a search order.
described includes described generally whether by reference to a class or otherwise.
premises includes a vehicle or vessel of any kind.
respondent means a person against whom a search order is sought or made.
search order has the meaning given by rule 25.19.
Note.
 In any notice of motion for a search order, a party should be referred to by the appropriate expression prescribed by rule 18.3.
25.19   Search order
(cf Federal Court Rules Order 25B, rule 2)
The court may make an order (a search order), in any proceeding or in anticipation of any proceeding in the court, with or without notice to the respondent, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence which is or may be relevant to an issue in the proceeding or anticipated proceeding.
25.20   Requirements for grant of search order
(cf Federal Court Rules Order 25B, rule 3)
The court may make a search order if the court is satisfied that—
(a)  an applicant seeking the order has a strong prima facie case on an accrued cause of action, and
(b)  the potential or actual loss or damage to the applicant will be serious if the search order is not made, and
(c)  there is sufficient evidence in relation to a respondent that—
(i)  the respondent possesses important evidentiary material, and
(ii)  there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the court.
25.21   Jurisdiction
(cf Federal Court Rules Order 25B, rule 4)
Nothing in this Division diminishes the inherent, implied or statutory jurisdiction of the court to make a search order.
25.22   Terms of search order
(cf Federal Court Rules Order 25B, rule 5)
(1)  A search order may direct each person who is named or described in the order—
(a)  to permit, or arrange to permit, such other persons as are named or described in the order—
(i)  to enter premises specified in the order, and
(ii)  to take any steps that are in accordance with the terms of the order, and
(b)  to provide, or arrange to provide, such other persons named or described in the order with any information, thing or service described in the order, and
(c)  to allow such other persons named or described in the order to take and retain in their custody any thing described in the order, and
(d)  not to disclose any information about the order, for up to 3 days after the date on which the order was served, except for the purposes of obtaining legal advice or legal representation, and
(e)  to do or refrain from doing any act as the court considers appropriate.
(2)  Without limiting the generality of subrule (1)(a)(ii), the steps that may be taken in relation to a thing specified in a search order include—
(a)  searching for, inspecting or removing the thing, and
(b)  making or obtaining a record of the thing or any information it may contain.
(3)  A search order may contain such other provisions as the court considers appropriate.
(4)  In subrule (2)—
record includes a copy, photograph, film or sample.
25.23   Independent solicitors
(cf Federal Court Rules Order 25B, rule 6)
(1)  If the court makes a search order, the court must appoint one or more solicitors, each of whom is independent of the applicant’s solicitors (the independent solicitors), to supervise the execution of the order, and to do such other things in relation to the order as the court considers appropriate.
(2)  The court may appoint an independent solicitor to supervise execution of the order at any one or more premises, and a different independent solicitor or solicitors to supervise execution of the order at other premises, with each independent solicitor having power to do such other things in relation to the order as the court considers appropriate.
25.24   Costs
(cf Federal Court Rules Order 25B, rule 7)
(1)  The court may make any order as to costs that it considers appropriate in relation to an order made under this Division.
(2)  Without limiting the generality of subrule (1), an order as to costs includes an order as to the costs of any person affected by a search order.