Australian Freezing Orders Are Valuable Recovery Devices

A substantial portion of the world’s hard and soft commodities are sold and shipped from Australia. Many of the companies involved are based in foreign jurisdictions, but hold substantial assets in Australia in the form of mining licenses or commodity stockpiles. The ability to freeze these Australian assets can be a valuable weapon in claims recoveries.

Australian courts will grant a freezing order against a prospective judgment debtor where there is a sufficient prospect that a foreign court will give a judgment in favor of the applicant and the judgment will be registered or enforced in Australia. Under Australian law, freezing orders may be granted where the claimant can show that it has a good arguable case with reasonable prospects of success. In addition, a claimant must show that if it obtained a judgment in a foreign country, there was a reasonable prospect that it would be registered and enforced in Australia. Finally, a claimant must establish that there was a “real risk” that if the assets were not frozen, any judgment would go unsatisfied.

Thus, where assets are being secreted and could be dissipated, a freezing order in Australia could mean the difference between holding a worthless judgment and recovering the claim to some extent.