Freezing Orders (mareva Injunctions) in Australia 2026: Requirements, Urgency & How to Apply

Who this guide is for: in-house counsel, CFOs, SME owners and external litigators who need immediate, practical steps to obtain or resist an urgent asset-preservation order in Australia, with checklists, timelines and sample order elements.

A freezing order Australia claimants apply for is one of the most powerful interlocutory remedies available in commercial litigation, and in 2026 it remains one of the fastest legal tools for stopping a defendant from dissipating or moving assets before judgment. Historically known as a Mareva injunction after the English decision that established the principle, a freezing order restrains a respondent from dealing with identified assets so that any eventual judgment is not rendered worthless. This guide sets out the legal tests, the urgent ex parte process, the usual undertaking as to damages, ancillary disclosure relief and the practical steps counsel and clients must take when time is critical.

It is written for practitioners and decision-makers who may need to act within hours, not weeks. For broader context, see the Litigation, Australia practice area page and the GLE lawyer directory.

The practical guidance below reflects contemporary courtroom expectations and current practice as at 2026.

What is a freezing order (Mareva injunction)?

A freezing order is an interlocutory injunction that prevents a respondent from disposing of, dealing with or diminishing the value of assets pending the resolution of a claim. The remedy takes its traditional name from Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd’s Rep 509, decided in the English Court of Appeal, which recognised the court’s power to restrain a defendant from removing assets from the jurisdiction to defeat a judgment.

Australian courts adopted and developed the principle, and it is now recognised as part of the inherent and rules-based jurisdiction of the superior courts, reflected in harmonised freezing-order provisions in the court rules (for example, the Federal Court Rules and the Uniform Civil Procedure Rules 2005 (NSW)).

The order does not give the claimant any proprietary interest in the frozen assets, nor does it operate as security for the claim. It is a protective measure directed at preserving the status quo so that the litigation is not a hollow exercise. Because it interferes with a person’s ordinary right to deal with their own property before any liability has been established, the courts treat the freezing order Australia applicants seek as an exceptional remedy, granted only where the criteria are satisfied and appropriate protections for the respondent are in place.

When is a freezing order appropriate?

An applicant must persuade the court that the circumstances justify this exceptional intervention. Australian courts apply a well-settled set of criteria, and the discretionary nature of the remedy means that even where the threshold tests are met, the court retains a residual discretion to refuse relief. In practice, the analysis turns on four connected questions.

Key legal tests: merits and risk of dissipation

• Good arguable case. The applicant must show a good arguable case on the substantive claim, a standard higher than “not frivolous” but lower than proof on the balance of probabilities. The court needs to be satisfied that there is a genuine cause of action worth protecting.
• Real risk of dissipation. The applicant must establish a danger that a prospective judgment will go wholly or partly unsatisfied because assets will be removed, hidden, dissipated or otherwise dealt with. Mere assertion is insufficient; the risk must be grounded in evidence such as unexplained transfers, a history of concealment, or connections to jurisdictions where enforcement is difficult.
• Adequacy of the undertaking as to damages. The applicant is ordinarily required to proffer a meaningful undertaking as to damages and demonstrate the capacity to honour it, so that the respondent is protected if the order later proves to have been wrongly granted.
• Balance of convenience. The court weighs the harm to the applicant if relief is refused against the harm to the respondent if it is granted. A freezing order Australia courts will grant only where this balance favours the applicant.

Evidence of dissipation risk is often the pivotal issue. Courts look for objective indicators, suspicious asset movements, dealings inconsistent with ordinary business, attempts to place property beyond reach, or a demonstrated propensity to breach obligations, rather than a generalised concern that a defendant might not pay.

Which courts can grant a freezing order?

Freezing orders may be granted by the State and Territory Supreme Courts and by the Federal Court of Australia, and in some matters by the Federal Circuit and Family Court within its jurisdiction. The Federal Court publishes practice notes and forms governing the procedure for freezing orders and urgent interlocutory relief. In New South Wales, the Supreme Court’s practice notes and the Uniform Civil Procedure Rules 2005 (NSW) set out the procedural framework for injunctions, service and ex parte applications. The choice of court depends on the nature of the claim, the location of the assets and the parties, and any concurrent proceedings already on foot.

Types of freezing and asset restraint orders

Not every case calls for the same order. The scope of a freezing order Australia practitioners seek should be tailored to the assets at risk and the geographical spread of the respondent’s holdings. Over-broad orders invite discharge and costs; too narrow, and assets slip through the gaps.

Worldwide, limited and tailored orders

• Domestic (limited) freezing order. Restrains dealings with assets located within a particular jurisdiction, usually the state or Australia generally. This is a common form and among the least intrusive.
• Worldwide freezing order. Extends to assets held anywhere in the world. Because of its reach, courts require compelling evidence of both the merits and the risk, and typically impose safeguards to protect third parties and foreign proceedings.
• Tailored or asset-specific order. Directed at identified property, a particular bank account, real estate title, shareholding or vessel. These are precise, easier to police and less likely to cause collateral harm.
• Third-party asset restraint. In defined circumstances, an order may reach assets held by a third party where there is a proper basis to believe those assets are, in truth, the respondent’s or are held on the respondent’s behalf.

Comparison table: freezing order types

Urgency and ex parte applications: what you need now

Much of the value of a freezing order lies in speed. If the respondent learns of an impending application, assets can be moved quickly. For that reason, many freezing orders are sought ex parte, that is, without notice to the respondent, with a return date fixed shortly afterwards for an inter partes hearing. An ex parte injunction Australia courts grant will always be interim and subject to review once the respondent has an opportunity to be heard.

Drafting the affidavit

The application often stands or falls on the supporting affidavit. It must be comprehensive, precise and scrupulously fair. At a high level, the affidavit should address:

1. The nature and strength of the underlying claim, establishing a good arguable case.
2. A schedule of the respondent’s known assets, with values and locations so far as they can be identified.
3. The specific facts founding the real risk of dissipation, transactions, conduct, associations or history that support the inference that assets will be moved or hidden.
4. The applicant’s proffered undertaking as to damages and evidence of the capacity to meet it.
5. Any matters adverse to the applicant’s case (see full and frank disclosure below).
6. The proposed form of order and why the scope sought is proportionate.

Duty of full and frank disclosure

Because the respondent is absent, the applicant assumes a heavy duty of full and frank disclosure. The applicant must bring to the court’s attention all material facts, including those that weaken the application or assist the respondent. Failure to disclose material matters is one of the common grounds on which freezing orders are discharged at the return hearing, often with an adverse costs order against the applicant. The safer course is to err on the side of disclosure: if a fact might be relevant to the exercise of the court’s discretion, it belongs in the affidavit.

The undertaking as to damages: content and limits

An undertaking as to damages is, in practice, ordinarily a precondition to obtaining injunctive relief. By giving it, the applicant promises the court that if the order is later found to have been wrongly granted, the applicant will compensate the respondent (and often affected third parties) for the loss the order caused. The undertaking must be genuine and supported by evidence of financial capacity; a bare promise from an impecunious applicant may be treated as inadequate. In some cases the court will require the undertaking to be fortified, for example, by payment into court or by security, where there is doubt about the applicant’s ability to make good on it.

Applicants should approach the process knowing that the court will scrutinise both the merits and their candour. An ex parte freezing order granted on incomplete or one-sided evidence may not survive the return hearing intact.

Ancillary relief: disclosure and derivative orders

A freezing order is frequently only the first step. Without knowing what assets exist and where they are, an applicant cannot police the order or plan enforcement. Ancillary orders fill that gap and are commonly sought at the same time as, or shortly after, the freezing order itself.

Ancillary disclosure order: when to seek it

An ancillary disclosure order compels the respondent to reveal the nature, location and value of their assets, typically supported by an affidavit sworn within a short deadline. It may also require disclosure of bank documents or dealings so that the applicant can verify compliance. Where information is held by a third party who is innocently mixed up in the wrongdoing, a bank, an accountant or a corporate registry agent, the applicant may seek preliminary discovery or disclosure to identify wrongdoers or trace assets. These orders should be sought where there is a genuine information deficit that would otherwise undermine the freezing order’s effectiveness.

Anton Piller / search orders: a different test

A search order, historically an Anton Piller order, is a distinct and more intrusive remedy that permits entry to premises to search for and preserve evidence at risk of destruction. It is not an asset-preservation order and is governed by its own stringent criteria, including a strong prima facie case, serious potential damage, and clear evidence that the respondent has incriminating material likely to be destroyed. Practitioners should not conflate the two: a freezing order preserves assets, while a search order preserves evidence, and each has separate requirements and safeguards. Where both evidence and assets are at risk, the two may be pursued together, but each must be independently justified.

Procedure by jurisdiction and practical timelines

While the underlying principles are consistent across Australia, the procedural detail, filing, listing, service and forms, varies by court. Applicants should follow the practice notes and rules of the court in which they file.

NSW: steps and rules

In New South Wales, applications proceed under the framework of the Uniform Civil Procedure Rules 2005 (NSW) and the Supreme Court’s practice notes on injunctions and urgent applications. An urgent ex parte application can often be brought before a duty judge, sometimes on the day the material is ready, with a short return date fixed for the inter partes hearing. Service of the order and the supporting material on the respondent (and on affected third parties such as banks) must follow promptly, as directed by the court.

Federal Court: steps and rules

The Federal Court of Australia has its own practice notes and forms governing freezing orders and ancillary orders, including a standard-form order and accompanying notes that applicants are expected to use as a starting point. The Federal Court is the natural venue for matters within its jurisdiction, for example, disputes with a federal statutory element, and has established procedures for urgent listings. As with the state courts, an ex parte order will be interim, with a return date for the respondent to be heard.

When to apply in other states and territories

Each State and Territory Supreme Court exercises a comparable jurisdiction under its own rules and practice notes. The governing considerations are where the assets are located, where the respondent resides or carries on business, and whether proceedings are already on foot. Where assets straddle multiple jurisdictions, applicants should consider which court can most effectively grant and police the order, and whether a worldwide order is warranted.

Indicative timeline: prepare affidavit and draft order → file and seek urgent ex parte listing (often same or next day) → interim order granted with return date fixed a short time later → serve respondent and affected third parties promptly → inter partes return hearing where the order is continued, varied or discharged.

What happens at the return (inter partes) hearing?

The return hearing is where the respondent gets its say, and it is often decisive. The interim order is not permanent; it survives only if the court is persuaded, now with both sides before it, that continuation is justified.

Defending a freezing order

A respondent has several avenues of resistance. It may challenge the strength of the applicant’s underlying claim, contest the evidence of dissipation risk, and, critically, point to any failure by the applicant to make full and frank disclosure at the ex parte stage. Respondents can adduce their own evidence, and in appropriate cases seek to cross-examine the applicant’s deponent on disputed matters. A respondent may also demonstrate that the order is causing disproportionate harm, for example by paralysing legitimate business operations, and argue that the balance of convenience no longer favours the applicant.

Variation and discharge grounds

Even where a freezing order survives in principle, respondents frequently seek variation rather than outright discharge, for instance, to permit payment of ordinary living expenses, legal costs, and debts incurred in the ordinary course of business. The court will usually accommodate such carve-outs so long as the order’s protective purpose is preserved. Grounds for discharge include material non-disclosure, a failure to establish a real risk of dissipation, an over-broad order, or a defective or inadequate undertaking as to damages. The hearing will also determine costs, which can fall heavily on an applicant whose ex parte order is discharged.

Practical risks, costs and enforcement

A freezing order carries real exposure for the applicant as well as the respondent. The undertaking as to damages means that if the order is discharged or the claim ultimately fails, the applicant may be liable for the respondent’s losses flowing from the order, potentially substantial in a commercial context. Adverse costs orders are a further risk where disclosure obligations are not met. Enforcement can also be complicated: a worldwide order may require recognition in foreign courts, and assets held offshore may be difficult to reach in practice, notwithstanding the terms of the order.

To manage these risks, applicants should monitor compliance closely, pursue ancillary disclosure to keep asset information current, and consider asset-tracing steps where dealings appear to breach the order. Breach itself is serious: a person who knowingly disobeys a freezing order, including a third party with notice who assists in dealing with frozen assets, may be liable for contempt of court, with penalties that can include fines and, in serious cases, imprisonment.

Quick checklist and sample documents

The following distilled checklist is intended to be actionable for in-house counsel, CFOs and SME decision-makers who suspect assets are at risk.

Sample order elements (high-level): identification of the assets and the maximum sum covered; the prohibition on dealing with assets; carve-outs for living, legal and ordinary business expenses; an ancillary disclosure requirement with a deadline; the applicant’s undertaking as to damages; a return date; and liberty to apply. Sample affidavit skeleton: the deponent’s authority and role; the underlying claim and its strength; the assets schedule; the facts founding dissipation risk; the undertaking and capacity to meet it; and a section disclosing matters adverse to the application.

Conclusion and next steps

Obtaining a freezing order Australia claimants can rely on requires speed, rigour and complete candour with the court. The remedy is powerful but exceptional: success depends on a good arguable case, credible evidence of a real risk of dissipation, a properly supported undertaking as to damages, and scrupulous full and frank disclosure at the ex parte stage. Where the underlying information is thin, ancillary disclosure and asset-tracing steps should be run alongside the primary application. Because both the substantive merits and the applicant’s conduct will be tested at the return hearing, preparation must be thorough from the first hour.

If you suspect assets are being moved to defeat a claim, act promptly and seek experienced counsel through the Litigation, Australia practice area page and the GLE lawyer directory. This guide is general information, not legal advice; obtain tailored advice on your specific circumstances without delay.

Sources

1. High Court of Australia
2. AustLII, Australasian Legal Information Institute
3. Federal Court of Australia, Practice Notes and Forms
4. Supreme Court of New South Wales, Practice Notes and Rules
5. Uniform Civil Procedure Rules 2005 (NSW)
6. Law Council of Australia