How to Apply for a Freezing Order in Australia 2026: Ex Parte, Good‑arguable Case, Cross‑undertakings & Worldwide Orders

Understanding how to apply for a freezing order is one of the most time‑critical skills in Australian commercial litigation, a delay of even a few hours can allow a defendant to strip assets beyond the reach of any future judgment. The Federal Court’s Practice Note GPN‑FRZG, issued on 7 February 2025, consolidates and updates the procedural expectations for all freezing‑order proceedings in that jurisdiction, while the Judicial Commission of NSW updated its Civil Benchbook chapter on freezing orders on 25 March 2026, sharpening guidance on ex‑parte disclosure duties and the standard of proof.

Against a backdrop of rising corporate fraud and cross‑border insolvency activity, these 2025–2026 updates make it essential for creditors, in‑house counsel and insolvency practitioners to understand the current thresholds, procedural steps and risk allocation mechanisms that govern asset preservation orders in Australia. This guide provides a step‑by‑step workflow, from pre‑filing asset investigation through to worldwide enforcement, grounded in the latest court practice notes and institutional guidance.

When Should a Business Seek a Freezing Order?

A freezing order, historically known as a Mareva injunction in Australia, is a court order that restrains a respondent from dealing with assets up to a specified value, so that a judgment creditor (or prospective judgment creditor) can satisfy its claim. The purpose is not to provide security for a debt; it is to prevent the frustration of court processes through the dissipation or concealment of assets. Not every unpaid invoice or contractual dispute warrants one. Applying without proper grounds exposes the applicant to adverse costs orders, reputational damage and the risk of paying substantial compensation under the cross‑undertaking as to damages.

Typical Commercial Fact Patterns

The commercial scenarios that most commonly justify an urgent asset preservation order in Australia include:

• Fraud and dishonesty claims. Evidence that a director or counterparty has misappropriated funds, forged documents or engaged in a Ponzi‑style scheme creates a strong inference of dissipation risk.
• Insolvency warning signs. A debtor company stripping assets, paying unusual dividends, restructuring shareholdings or transferring property to related entities shortly before or after a demand is served.
• Flight risk indicators. A natural‑person respondent booking one‑way travel, liquidating real estate or transferring funds offshore without an obvious commercial rationale.
• Post‑judgment enforcement gap. Where a judgment has already been obtained but remains unsatisfied and the judgment debtor’s conduct suggests assets are being placed beyond reach.

When NOT to Apply

Courts consistently warn against using freezing orders as a tool to pressure settlement or as a substitute for ordinary debt‑recovery procedures. An application will be refused, and costs awarded against the applicant, where the order sought is oppressive, disproportionate to the claim, or brought primarily for a collateral purpose. Before filing, practitioners should conduct a candid risk assessment: is the evidence of dissipation real and current, or merely speculative? Is the value of the claim sufficient to justify the cost and the cross‑undertaking exposure? If the answers are equivocal, an on‑notice application with a short return date may be more appropriate than an ex‑parte hearing.

Urgency, Ex Parte Freezing Order Applications & Disclosure Obligations

An ex parte freezing order is one made without prior notice to the respondent. Courts permit this extraordinary step only where giving notice would defeat the purpose of the order, typically because the respondent would dissipate assets in the interval between service and the hearing. Practice Note GPN‑FRZG (7 February 2025) sets out the Federal Court’s expectations for ex‑parte applications, including the requirement that the applicant demonstrate why the matter is so urgent that the ordinary inter‑partes process cannot be followed.

Drafting an Ex Parte Affidavit, Required Content

The applicant’s affidavit in support of an ex‑parte application bears a heavy evidential burden. The Judicial Commission of NSW Benchbook (updated 25 March 2026) emphasises the obligation of full and frank disclosure: the applicant must disclose all material facts known to it, including those that are unfavourable to its case. Failure to meet this standard is one of the most common grounds on which freezing orders are later discharged, often with indemnity costs. A well‑drafted ex‑parte affidavit should address:

• The cause of action. A concise summary of the underlying claim, sufficient to demonstrate a good arguable case.
• Evidence of assets. Identification, as far as practicable, of real property, bank accounts, vehicles, shareholdings and other assets within and outside Australia.
• Risk of dissipation. Concrete, admissible evidence that the respondent is likely to deal with assets so as to defeat any future judgment. Mere assertion is insufficient.
• Urgency. An explanation of why notice to the respondent would or might frustrate the order.
• Service plan. The proposed method and timeline for serving the order and originating process on the respondent after the order is made.
• Material contrary matters. Disclosure of any facts that might tell against the grant of the order, including any defence the respondent is likely to raise.

Cross‑Undertakings and Security

Every applicant for a freezing order must give a cross‑undertaking as to damages, a promise to compensate the respondent (and, where relevant, affected third parties such as banks) for any loss caused if the order is later found to have been wrongly made. In Federal Court proceedings, GPN‑FRZG specifies that the court may require the undertaking to be supported by security, such as a payment into court or a bank guarantee. The quantum of the security is assessed by reference to the potential losses the respondent may suffer from being restrained.

Industry observers expect that courts will increasingly scrutinise the financial capacity of applicants to honour their undertakings, particularly where the applicant is a special‑purpose vehicle or a thinly capitalised entity.

Elements of a Freezing Order: The Legal Thresholds

The elements of a freezing order are well established across Australian jurisdictions, though the precise formulation varies slightly between the Federal Court, state Supreme Courts and lower courts. At their core, applicants must satisfy the court on four matters.

• A good arguable case. The applicant must show that it has a cause of action against the respondent and that the claim has a sufficient prospect of success. This is a lower threshold than the balance‑of‑convenience test for ordinary interlocutory injunctions, but it is not a mere formality, courts will scrutinise the evidence.
• Identifiable assets. There must be evidence that the respondent holds, or has recently held, assets that fall within the proposed scope of the order.
• A real risk of dissipation. The applicant must demonstrate, on the evidence, a danger that the respondent will remove assets from the jurisdiction, dispose of them, or otherwise deal with them in a way that would frustrate the enforcement of a prospective judgment. The Judicial Commission of NSW Benchbook notes that the risk must be “real” rather than fanciful.
• Jurisdiction and proportionality. The court must have jurisdiction to make the order, and the order sought must be proportionate, it should not freeze assets far in excess of the claim or impose unnecessary hardship.

“Good Arguable Case”, Evidence Standard and Pitfalls

A good arguable case means more than a triable issue but less than a probability of success. Practitioners frequently undermine their own applications by overstating the strength of their case or failing to acknowledge defences. In freezing order NSW practice, the Supreme Court routinely expects the affidavit to identify the precise legal basis of the claim, contract, tort, equity, statute, and to annex key documents. Bare assertions of fraud without supporting transactional records or forensic analysis are unlikely to satisfy the threshold.

Quantifying the Sum and Describing Assets

The draft order must specify a maximum sum up to which assets are frozen. Courts will not grant open‑ended restraints. The applicant should particularise, as far as possible, the assets to be caught, including known bank account numbers, real‑property titles and company shareholdings. Where the respondent’s asset position is opaque, the applicant may seek ancillary disclosure orders requiring the respondent to file an affidavit of assets within a short timeframe after the order is served.

How to Apply for a Freezing Order: Step‑by‑Step Practical Workflow

The following workflow reflects current Federal Court and state Supreme Court practice. Time estimates are indicative, urgency can compress every stage.

Step 1, Pre‑Filing Triage and Asset Investigation

Before any court documents are prepared, the applicant’s legal team should undertake a rapid but thorough asset investigation. This typically involves:

• ASIC company and director searches to identify corporate structures, related entities and officeholder details.
• Land‑title searches in every relevant state and territory.
• PPSR (Personal Property Securities Register) searches to identify security interests over personal property.
• Open‑source intelligence on the respondent’s known business activities, social‑media presence and travel patterns.
• Where the matter involves suspected fraud, engagement of forensic accountants to trace fund flows and identify dissipation pathways.

This pre‑filing phase may take as little as a few hours in a straightforward matter or several days in a complex, multi‑entity fraud.

Step 2, Drafting Strategy: Affidavit, Draft Order and Supporting Material

The freezing order application form and supporting materials must be prepared to a high standard. In the Federal Court, GPN‑FRZG provides a model form of freezing order that practitioners should use as their starting template. Key documents include:

• Affidavit in support. Structured to address each element of the legal test (see the affidavit checklist below). Exhibit all key documents: contracts, invoices, bank statements, correspondence evidencing dissipation risk.
• Draft order. Use the court’s model form and adapt it to the facts. Specify the maximum frozen sum, the categories of assets, any living‑expenses carve‑out and the return date.
• Originating process. If proceedings have not yet been commenced, the originating application or statement of claim must be filed simultaneously or, in some courts, before the freezing‑order application.
• Written submissions. A concise outline of the legal basis, the evidence satisfying each element and the reasons urgency justifies an ex‑parte hearing.
• Proposed schedule of assets. A draft form requiring the respondent to disclose all assets above a specified value, to be filed and served within a set number of days after the order is served.

Step 3, Filing and Hearing: Court Registry and Urgent Listings

In the Federal Court, ex‑parte applications for freezing orders are ordinarily heard by the duty judge. The applicant’s solicitor should contact the relevant registry to arrange an urgent listing, in many registries this can be done by telephone or email, and hearings can take place the same day or the following morning. In state Supreme Courts, the procedure for urgent applications varies: in NSW, the duty judge system operates similarly; in Victoria, the County Court’s practice note on freezing orders (PNCI 1‑2007) provides specific guidance on filing and hearing mechanics. The applicant should be prepared for the hearing to be conducted by telephone or video link if the matter arises outside court hours.

Step 4, Service of the Order and Originating Process

Once the order is made, speed of service is critical. The order typically includes a direction that it be served on the respondent personally within a specified timeframe, often 24 to 48 hours. Where the respondent is outside Australia, the order may include leave to serve out of the jurisdiction. Service on third parties, particularly banks, should occur as soon as practicable, ideally within hours of the order being sealed. Most major Australian banks have dedicated legal or compliance teams that process freezing orders; providing a clear, one‑page cover letter summarising the order’s effect will expedite compliance.

Step 5, Undertakings and Security: Drafting Cross‑Undertakings

The cross‑undertaking as to damages is not a mere formality, it is an enforceable promise that can expose the applicant to significant liability. The undertaking should be drafted to cover:

• Loss suffered by the respondent as a direct result of the order, including inability to deal with assets for ordinary business purposes.
• Loss suffered by any third party served with the order, such as a bank incurring compliance costs.
• Where required by the court, fortification of the undertaking by a payment into court, a bank guarantee or other security.

Step 6, Immediate Enforcement Actions

After service, the applicant should move quickly to ensure the order has practical effect. This includes confirming that banks have placed holds on identified accounts, that land registries have been notified (where the order restrains dealings with real property) and that any share registries have been informed. Monitoring is ongoing: if there is evidence that the respondent is attempting to circumvent the order, the applicant may need to return to court urgently for contempt proceedings or supplementary orders.

Sample Affidavit Headings

A structured affidavit in support of an ex‑parte freezing order application typically includes the following headings:

1. Introduction and identity of the deponent
2. The parties and their relationship
3. The underlying cause of action
4. Evidence of the respondent’s assets (within and outside Australia)
5. Evidence of risk of dissipation
6. Urgency, why notice should not be given
7. Full and frank disclosure, matters adverse to the applicant
8. The proposed order and its terms
9. Service plan
10. Cross‑undertaking as to damages

Worldwide Freezing Orders, Service Out and Cross‑Border Enforcement

A worldwide freezing order extends the restraint beyond Australian borders, purporting to prevent the respondent from dealing with assets anywhere in the world up to a specified sum. This form of Mareva injunction in Australia is available in both the Federal Court and state Supreme Courts, but it carries additional procedural and practical complexities.

Drafting to Protect Offshore Assets

The draft order must be carefully worded to bind the respondent personally, it operates in personam, meaning it compels the individual or corporate respondent not to deal with their assets, rather than attaching to the assets themselves. The order typically includes a proviso that it does not affect the rights of third parties outside Australia who have not been given notice of it. When seeking to restrain assets held through foreign subsidiaries or trusts, the applicant must demonstrate that the respondent has effective control over those assets.

Chabra orders, named after the English decision, allow the court to freeze assets held by a third party where there is good reason to suppose those assets are beneficially owned or controlled by the respondent.

Enforcement Pathway vs Injunctive Relief Abroad

A worldwide freezing order made by an Australian court does not, of itself, bind foreign banks or registries. Enforcement requires either the cooperation of the respondent (who is personally bound and may face contempt proceedings for non‑compliance) or a separate application in the foreign jurisdiction. In common‑law jurisdictions, including England, Hong Kong and Singapore, there are well‑established procedures for recognising and enforcing foreign freezing orders. In civil‑law jurisdictions, the process is more uncertain. Early indications suggest that practitioners are increasingly using worldwide orders as a platform for coordinated multi‑jurisdictional enforcement rather than relying on them as stand‑alone instruments.

Defending, Varying or Discharging a Freezing Order

A respondent who is served with a freezing order is not without recourse. The order itself will typically include a return date, a hearing at which the respondent can appear and argue that the order should be discharged or varied. The County Court of Victoria’s practice note on freezing orders expressly reserves to the respondent the liberty to apply to discharge or vary the order on short notice.

Immediate Tactical Moves for Respondents

• Review the order carefully. Identify the precise scope, the frozen sum, any carve‑outs for living expenses or ordinary business dealings, and the return date.
• Prepare evidence to counter dissipation risk. File affidavit evidence demonstrating a stable asset base, no intention to dissipate, and an explanation for any transactions that the applicant has characterised as suspicious.
• Challenge the applicant’s disclosure. If the applicant failed to make full and frank disclosure in the ex‑parte hearing, this is the single most effective ground for discharge. Courts take non‑disclosure extremely seriously and may discharge the order with indemnity costs even where the underlying merits favour the applicant.
• Offer undertakings or security. In some cases, the respondent can negotiate a variation, for example, offering to provide security equivalent to the claim in exchange for the release of assets needed for business operations.
• Challenge jurisdiction or proportionality. If the order is overbroad or the court lacked jurisdiction (for example, because the assets are not within the territorial reach of the court), these grounds should be raised at the earliest opportunity.

Industry observers expect that respondents who act swiftly, within 48 to 72 hours of service, and present credible counter‑evidence are significantly more likely to achieve a variation or discharge than those who wait until the return date.

Practical Checklists, Forms and Drafting Tips

The following checklists condense the practical requirements discussed throughout this guide. They are designed to be used as quick‑reference tools during the preparation of a freezing‑order application.

• Applicant’s pre‑hearing pack. Affidavit in support (with exhibits); draft order (based on court model form); originating process; written submissions; proposed asset‑disclosure schedule; draft cross‑undertaking; cover letter for service on banks/third parties.
• Ex parte affidavit checklist. Cause of action; asset evidence; dissipation risk; urgency; full and frank disclosure; service plan; cross‑undertaking.
• Draft schedule of assets. Real property (by title reference); bank accounts (by institution and BSB/account number where known); vehicles (by registration); shares and units (by entity name and register); other significant assets (plant, equipment, IP).
• Sample cross‑undertaking elements. Promise to pay compensation; scope covering respondent and third parties; mechanism for fortification if required (payment into court, guarantee, bond).
• Bank/third‑party notice template pointers. Identify the order by court, case number and date; specify the frozen sum; list the accounts or assets affected; provide solicitor contact details for queries; attach a sealed copy of the order.

Conclusion: Quick Action Plan for In‑House Legal Teams

Freezing orders remain one of the most powerful, and most demanding, weapons in Australian civil litigation. For in‑house counsel and corporate creditors who need to act quickly, the following three‑point action plan captures the essentials. First, conduct an immediate asset investigation using ASIC, land‑title and PPSR searches so that the affidavit material is evidence‑based rather than speculative. Second, instruct experienced counsel to prepare the application using the court’s model form of order and ensure that full and frank disclosure obligations are met to the highest standard, a failure here will likely see the order set aside. Third, budget for the cross‑undertaking exposure and consider whether security will be required; under‑estimating this cost can derail the entire strategy.

Knowing how to apply for a freezing order, and executing each step with precision and speed, can mean the difference between preserving assets for a judgment and watching them disappear.

This article provides general legal information and does not constitute legal advice. Freezing‑order practice varies between jurisdictions and individual circumstances. Readers should consult qualified legal counsel in the relevant Australian jurisdiction before taking action.

Sources

1. Federal Court of Australia, Freezing Orders Practice Note (GPN‑FRZG)
2. Judicial Commission of NSW, Benchbook: Freezing Orders
3. Australian Taxation Office, Chapter 36 Freezing Orders
4. Clayton Utz, Freezing Orders Explained (27 June 2025)
5. County Court of Victoria, Practice Note: Freezing Orders (PNCI 1‑2007)
6. Australian Bar Association, Worldwide Freezing Orders (Conference Paper)
7. AustLII, Australasian Legal Information Institute