Freezing and Search Orders in Civil Litigation

9 March 2025 in Civil and Commercial Litigation | 7 min read | skip to FAQs

This article explains freezing and search orders, including the application for and purpose of these orders. Search (also known as Anton Piller orders) and freezing orders (also known as Mareva injunctions) are very useful tactical tools that can be used in civil litigation to ensure, among other things, the protection of evidence and assets. Search and freezing orders are both interlocutory processes, simply meaning court processes initiated during litigation and prior to any final hearing. Any party to legal proceedings may make an application to court, also called a Notice of Motion, seeking such orders during the conduct of legal proceedings in certain circumstances.

What are Search Orders?

Search orders are orders seeking to prevent parties from preemptively hiding or destroying material, such as evidence, that can be relevant to legal proceedings. These orders allow the applicant to enter upon the other party’s premises to obtain and preserve relevant material. Such an order involves a significant intrusion into the rights of the other party. Therefore, applications for search orders will not be granted lightly, especially since when the court makes such orders, it is usually done ex parte (meaning without the knowledge or involvement of the affected party), to ensure that the relevant material is not destroyed or hidden in advance.

Legislative Provisions

The legislation concerning search orders is found in regulations 25.18 through to 25.24 of the Uniform Civil Procedure Rules (NSW) (UCPR), which have application in New South Wales. For federal proceedings, rules 7.41 through to 7.47 of the Federal Court Rules 2011 apply. These rules are harmonised across all jurisdictions.

Requirements for Making a Search Order

Under UCPR rule 25.20, the court must be satisfied that the following requirements are met before making a search order:

1. The applicant seeking the order has a strong case on first impression or an accrued cause of action;
2. In the absence of an order, there will be serious potential or actual loss suffered by the applicant; and
3. Sufficient evidence exists regarding the prospective respondent (i) possessing important material, and (ii) there being a real risk that they might destroy the material or otherwise make it unavailable for use in proceedings.

Costs

UCPR rule 25.24 allows the court to make any order as to costs it considers appropriate relating to search orders, affording it a wide discretion.

Guidance from the Practice Note

Courts frequently issue practice notes providing guidance on practice and procedure. The Supreme Court has issued a practice not specifically in relation to search orders. Practice Note No. SC Gen 13 provides useful guidance that explains how to ensure compliance with the UCPR rules while carrying out a search order, as well as guidance on how to ensure that any application for a search order will be granted by the Court.

On the latter point, the Practice Note sets out what information an affidavit written in support of the search order should include, among other things, information about the relevant premises, why the order is sought, facts about the occupants of any residential premises that would be subject to the search order, and what prejudice, loss, or damage would befall the applicant absent of an order.

The Practice Note also provides further detail regarding the UCPR rules. For instance, rule 25.23 states the requirement for the participation of an independent solicitor during the execution of a search order. However, the Practice Note comprehensively sets out the independent solicitor’s responsibilities concerning execution and includes the criteria to gauge the solicitor’s independence.

There is also information within the Practice Note absent from the UCPR rules. Despite the rules not noting the required size of the search party, the Practice Note states that it “should be as small as is reasonably practicable”. Likewise, the Practice Notes supplies further requirements relating to aspects such as precluding a search order from being executed whilst a search warrant by the police or any regulatory authority is being carried out in the same premises, and not permitting an applicant to inspect materials (or copies) removed from the premises, or to be given information regarding these materials by the search party, without leave of the Court.

Proper Purpose

Given the serious compromise that a search order causes to a respondent’s privacy, the courts are vigilant in ensuring that they are only used for their proper purpose. During the lengthy Findex Group Ltd v Mackay proceedings, the issue of search orders was a matter that concerned the Court of Appeal.

In the case of Findex Group Ltd v Mackay [2019] NSWCA93 the Court of Appeal upheld the judgement at first instance that determined that the applicants sought a search order to facilitate discovery and ascertain what other potential causes of action they could claim for, rejecting the attempted utilisation of search orders as investigatory tools to discover whether an applicant has a case to begin with.

In summary, the Court decided that the search order was not for a proper purpose and other legal procedures search as preliminary discovery, which are less intrusive, should have been used.

What are Freezing Orders?

Freezing orders are orders designed to prevent the frustration of a judgement. They prevent a party from disposing of its assets that could help satisfy a judgement, essentially freezing them. For example freezing orders may be used to freeze funds in a bank account.

Similar to search orders, freezing orders are considered exceptional remedies and are not to be granted lightly, especially as they are often done on an ex parte basis, without providing notice to the respondent subject to the freezing order. It is important to note that the purpose of a freezing order is to prevent the frustration of a judgement, not to provide security for it.

Legislative Provisions for freezing orders

Akin to search orders, the legislative provisions for freezing orders are found in the UCPR and Federal Court Rules 2011, depending on the proceedings’ jurisdiction.

Freezing orders in New South Wales proceedings have been legislated for within rules 25.10 through to 25.17 of the UCPR. Freezing orders in federal proceedings are covered in rules 7.31 through to 7.38 of the Federal Court Rules. Corresponding to the harmonised regulation of search orders, the regulations governing freezing orders are synchronised to ensure that they can be applied throughout Australia regardless of jurisdiction.

Ancillary Order

Rule 25.12 authorises the court to make an ancillary order for the purposes of obtaining information about the assets relevant to the prospective freezing order, and or determining the merits of making an order.

Costs

Rule 25.17 of the UCPR allows the court wide discretion when it comes to making costs orders in relation to freezing orders.

Qualifying for a Freezing Order

Rule 25.14 of the UCPR states that any application for a freezing must satisfy certain criteria:

1. There is a sufficient prospect that the judgement will be made in favour of the applicant; and
2. That there is the risk of the judgement debtor against whom the order is sought will abscond, dispose of, or diminish their assets that would undermine the enforcement of a judgement.

The threshold of a sufficient prospect is met when the applicant has a good arguable case. A good arguable case is one that has to be more than barely capable of being seriously argued, however it does not need to have a better than 50% chance of success. This definition has been affirmed in a range of cases, notably Patterson v BTR Engineering (Aust) Ltd 1989 18 NSWLR 319.

Determining if there is a risk that a judgement will be unsatisfied absent a freezing order needs to be assessed with reference to the existence of facts or strong inferences demonstrating the risk that the judgment would not be satisfied. The mere assertion that assets will be disposed of, without any evidence provided to support this assertion, will not satisfy the court sufficiently to make an order, as demonstrated in Bennett (bht Jones) v State of New South Wales & Anor [2022] NSWSC 1406.

Freezing Orders and Third Parties

Rule 25.13 allows for freezing orders to be made against third parties who are not a party to the proceedings, while rule 25.14 (5) holds that the court needs to be satisfied that the third party has a power of disposition over assets of the respondent or is in a position of control over them.

Guidance from the Practice Note

Practice Note No. SC Gen 14 gives further guidance on freezing orders, and includes an example that can be used for reference. Other important information in the Practice Note not touched upon in the UCPR includes the length of the freezing order. The Practice Note effectively sets a time limit on the freezing order to the return day of the motion (application) for the freezing order, which in usual circumstances should be a matter of days after the freezing order is made. If an applicant wants to extend the freezing order beyond this, the applicant bears the onus of satisfying the court, during the hearing of the motion, that there are sufficient grounds to grant an extension. Moreover, the Practice Note references the need for orders to exclude assets where said assets are used for legitimate purposes such as reasonable living, legal, and business expenses, and makes explicitly clear that a freezing order can cover assets outside of Australia.

Foreign Judgements

PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36 held that a Supreme Court in Australia has an inherent power to make freezing orders in anticipation of the judgements of foreign courts. This finding reflects the need for Australian courts to give effect to foreign judgements, as well as the reality of today’s global economy.

How can BSM Sydney Lawyers assist you?

Making applications for search and freezing orders can be challenging, especially if they are part of complex proceedings. The civil litigation lawyers at Brander Smith McKnight Sydney Lawyers are experienced in all aspects of commercial and civil litigation and will advocate for you and smoothly guide you through the procedural hurdles. Our Sydney litigation lawyers are able to represent you in court, thus saving you the expense of a barrister. However, for particularly complex matters, we have a panel of barristers that we can call on. The litigation lawyers at BSM Sydney Lawyer provide a free 20-minute, no obligation consultation to discuss your case.

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BSM Lawyer Sydney has offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.