Part 7 Interlocutory Matters - PacLII

Part 7
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(iii) the assets are likely to be removed from Vanuatu, or
dealing with them should be restrained.
[7.8.16] Extent of likelihood The applicant must show that refusal would pose a real risk
that the defendant’s actions would result in the judgment being unsatisfied: Ninemia
Maritime v Trave Schiffahrtsgesellschaft [1983] 1 WLR 1412 at 1422; [1984] 1 All ER
398 at 419. The strength of the likelihood informs the strength of the application.
[7.8.17] Subjective fear insufficient A claimant cannot obtain an order merely because
he fears there will be nothing against which he can enforce judgment or to secure his
position against other creditors – the purpose of a freezing order is only to prevent
against abuse of process by the frustration of the court’s remedies: Jackson v Sterling
Industries (1987) 162 CLR 612 at 625; 61 ALJR 332 at 337; 71 ALR 457 at 465.
[7.8.18] Form of order The order will commonly restrain a party from transferring assets
abroad and from dealing with them locally, regardless of which risk was the basis of the
application: AJ Bekhor & Co Ltd v Bilton [1981] QB 923 at 926; Z v A-Z [1982] QB 558
at 585; [1982] 1 All ER 556 at 571-2; [1982] 2 WLR 288 at 306; [1982] 1 Lloyd’s Rep
240 at 251.
[7.8.19] Order interlocutory in nature A freezing order will usually be regarded as
interlocutory, as opposed to a permanent injunction: Siskina & Ors v Distos Compania
Naviera SA [1979] AC 210 at 253.
(5) The application must:
[7.8.20] Requirement of full disclosure An applicant is under a duty to make full and
frank disclosure of all material facts known to him and to make proper inquiries before
applying. The provisions of this subrule and subrule (6) are generally reflective of the
requirements laid down by the authorities: see generally R v General Commissioners
For Income Tax For Kensington [1917] 1 KB 486 at 506; Third Chandris v Unimarine
[1979] QB 645 at 668-9; [1979] 2 All ER 972 at 984-5; [1979] 3 WLR 122 at 137-8;
[1979] 2 Lloyd’s Rep 184 at 189; Brinks-MAT v Elcombe [1988] 3 All ER 188; [1988] 1
WLR 1350; Dormeuil Freres v Nicolian [1988] 3 All ER 197; [1988] 1 WLR 1362;
Lloyd’s Bowmaker v Britannia Arrow Holdings [1988] 3 All ER 178 at 181-2; [1988] 1
WLR 1337 at 1342-3; Manor Electronics v Dickson [1988] RPC 618; (1990) 140 NLJ
590 (applicant in financial difficulties); Behbehani v Salem [1989] 1 WLR 723; [1989] 2
All ER 143 (disclosure of existing or contemplated proceedings elsewhere).
(a) describe the assets and their value and location; and
[7.8.21] Foreign assets There is no reason why the order cannot be directed to assets
located outside Vanuatu: Derby v Weldon (Nos 3 & 4) [1990] Ch 65; [1989] 2 WLR 412;
National Australia Bank v Dessau [1988] VR 521.
[7.8.22] Scope of order The requirement to describe known assets and location does not
mean that the order will necessarily be confined to these. The order may be drawn to
have an ambulatory effect, attaching to such assets as the party may have from time to
time: TDK Tape v Videochoice [1986] 1 WLR 141 at 145; [1985] 3 All ER 345 at 349.
(b) include the name and address of the owner of the assets, if
known, and the identity of anyone else who may be affected
by the order and how they may be affected; and
[7.8.23] Extent of applicant’s knowledge It is not fatal to an application that the
applicant has little or no knowledge of circumstances particular to others or that, with
greater effort, it could have discovered more: Commr of State Taxation (WA) v Mechold
(1995) 30 ATR 69 at 74; 95 ATC 4053 at 4058.
(c) if a proceeding has not been started, set out:
(i) the name and address of anyone else likely to be a
defendant; and
(ii) the basis of the applicant’s claim; and
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