Freezing Orders in Victoria: Protecting Assets Before Judgment

What a Freezing Order Is

In the Supreme Court of Victoria, freezing orders are made under Order 37A of the Supreme Court (General Civil Procedure) Rules 2025 (opens in a new tab), which commenced on 8 September 2025. Rule 37A.02 allows the Court to make an order, with or without notice to the respondent, "for the purpose of preventing the frustration or inhibition of the Court's process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied". The order may restrain a respondent from removing assets located in or outside Australia, or from disposing of, dealing with or diminishing the value of those assets.

Order 37A is part of a set of rules harmonised across Australian superior courts, with a standard form of order (Form 37AA). Rule 37A.02(4) requires the Court to consider its Practice Note SC Gen 17 (Freezing Orders) (opens in a new tab). The note describes usual practice and terms, not limits on judicial discretion to make an appropriate order in the particular case (paras 1.3–1.4). It was issued in January 2017 and still refers to the 2015 Rules; the Court has said references to the 2015 Rules should be read as references to the equivalent 2025 rule. Rule 37A.06 confirms that the Order does not limit the Court's inherent, implied or statutory jurisdiction to make freezing orders.

The County Court Civil Procedure Rules 2018 contain an equivalent Order 37A, and the Federal Court has its own harmonised rules in Division 7.4 of the Federal Court Rules 2011. Which court is appropriate depends on the underlying claim, its value and the court's jurisdiction, and should be considered with specific advice.

A freezing order is often described as an injunction, and that is convenient shorthand. It binds the person against whom it is made, including when they act through directors, employees or agents. It does not transfer ownership or create a security interest: an applicant who later obtains judgment still has to enforce it in the ordinary way.

Purpose of a Freezing Order

The purpose is narrow but important: to protect the integrity of the Court's processes. In Jackson v Sterling Industries Ltd (1987) 162 CLR 612 (opens in a new tab), the High Court described the power as part of the armoury of a court to prevent the abuse or frustration of its process (Deane J), and said a Mareva order is "neither a species of anticipatory execution nor does it give a form of security for any judgment" (Wilson and Dawson JJ). In Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 (opens in a new tab) at [41]–[43], the joint judgment explained the order as a development of the courts' powers to protect their processes, and noted that where non-parties are concerned the focus is the administration of justice.

That focus shapes everything about the order. It is interim and protective, not punitive. It does not give the applicant the use of the assets. It does not freeze the respondent's life — the standard form allows ordinary living and business expenses and legal costs. And because it is a significant restriction, the respondent, and anyone else affected, can apply at any time to vary or discharge it.

Freezing Orders vs Ordinary Judgments

A judgment is the Court's final determination of the dispute. It gives the successful party an entitlement to enforce against the losing party's assets — for example, by warrant of seizure and sale, garnishee order, or bankruptcy or winding-up proceedings. Our guide to enforcing a judgment debt in Victoria explains those steps.

A freezing order is usually made before judgment, although it can also be made after judgment to support enforcement. It does not decide the merits of the case, create any new entitlement to the respondent's assets or give the applicant priority over other creditors. Its only function is to preserve assets so that the Court's eventual decision can have practical effect.

What an Applicant Must Show

Rule 37A.05 sets out the usual requirements. First, the applicant needs either a judgment in its favour or a good arguable case on an accrued or prospective cause of action. Second, the Court must be satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because the respondent or another person might abscond, or because assets might be removed from Australia or from a place inside or outside Australia, or disposed of, dealt with or diminished in value. Even when both are shown, the Court retains a discretion.

The danger need not be more probable than not, but it must be real. In Deputy Commissioner of Taxation v Huang [2021] HCA 43 (opens in a new tab) at [12], the High Court set out the Full Federal Court's summary of the authorities, including Gleeson CJ's reference in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 325 to a danger "sufficiently substantial to warrant the grant of an injunction". Bare commercial nervousness, or the fact that the respondent is in financial difficulty, is not enough on its own. Evidence that has supported a finding of danger includes:

• recent transfers of assets to related parties or offshore entities, especially after the dispute became known;
• corporate restructures that shift value out of the respondent entity;
• a history of dishonesty, fraud or non-compliance with court orders;
• concealment of assets, refusal to provide ordinary financial information, or inconsistent statements about ownership;
• the use of complex offshore structures, nominee shareholdings or family trusts that obscure the ultimate beneficial owner; and
• imminent realisation events — for example, a sale of real estate or a distribution of trust funds — that would put proceeds beyond reach.

The Court draws inferences from the evidence as a whole. The applicant does not have to prove that the respondent has already acted dishonestly.

Prospective claims and foreign proceedings. Because rule 37A.05 refers to a prospective cause of action, an order can be sought before the cause of action has fully accrued. The rule also allows an order in support of a judgment of another court, or a claim justiciable in another court (including a foreign court), but only where there is a sufficient prospect that the other court will give judgment for the applicant and that the judgment will be registered in or enforced by the Supreme Court of Victoria. These are specific statutory conditions, not a general power to freeze assets for any overseas dispute.

Orders Against Third Parties

A freezing order can be made against a person who is not a party to the main proceeding (rule 37A.04). Under rule 37A.05(5), the Court may make an order if, having regard to all the circumstances, it is satisfied of either of two alternatives:

• there is a danger that its judgment or prospective judgment will be wholly or partly unsatisfied because the third party holds or uses the debtor's assets, has exercised or is exercising a power to dispose of them, or is in possession of, or a position of control or influence concerning, those assets (including claims and expectancies); or
• a process in the Court is or may ultimately be available to the applicant as a result of its judgment or prospective judgment, under which the third party may have to disgorge assets or contribute toward satisfying it.

That rule reflects the principle stated in Cardile at [57]–[58]. The High Court emphasised that such an order "may" be appropriate in those circumstances, and at [54] listed discretionary questions, including why proceedings have not been brought against the third party directly. Being a spouse, relative, related company or trust of the respondent is not enough by itself: the evidence must connect the third party to the debtor's assets or to a process that could make it contribute.

What the Order Covers and Allows

Practice Note SC Gen 17 (para 4.6) explains that an order may be limited to assets in Australia or extend worldwide, and may cover all assets, a class of assets or specific assets such as identified bank accounts. Under the standard form, the respondent's assets include assets not in their name and assets a third party holds or controls on their instructions (Form 37AA para 7). The value restrained should not normally exceed the likely maximum amount of the claim, including interest and costs (para 4.9).

Bank accounts. Bank accounts are commonly frozen. A bank that is notified of the order and knowingly helps a breach may be exposed to contempt, so banks often restrict an account once notified. The standard form does not stop a bank exercising a right of set-off for a facility it gave before it was notified, and a bank need not inquire into withdrawals that appear to be permitted by the order. The applicant also undertakes to pay the reasonable costs incurred by anyone other than the respondent as a result of the order.

Real estate. An order will often prohibit any sale, transfer or further mortgage of identified property, or require the net sale proceeds to be preserved. A caveat is a separate mechanism that requires a caveatable interest in the land; a claim for money alone does not support one.

Companies, shares and trusts. Orders are regularly made against companies and against individuals whose wealth sits in company structures. Typical orders restrain dealings with corporate accounts and receivables, shares in private companies (including dilutive share issues), units in unit trusts, assets of trusts the respondent can deal with as their own, intellectual property, plant and stock, and loans owed to the respondent by related entities. The Court may also make ancillary orders requiring disclosure of assets (rule 37A.03).

Standard exceptions. The standard form (Form 37AA, para 10) does not prohibit the respondent from:

• paying ordinary living expenses, often up to a stated weekly amount;
• paying reasonable legal expenses, sometimes up to a stated amount;
• dealing with assets in the ordinary and proper course of business, including paying business expenses properly incurred; and
• meeting obligations properly incurred under a contract made before the order, after giving the applicant (if possible) at least two working days' written notice.

The parties can agree in writing to vary these exceptions and file a proposed consent order. The standard form also provides that the order ceases to have effect if the respondent pays a specified sum into Court or into a joint solicitors' account, or provides agreed security — without giving the applicant priority over other creditors.

Applying: Urgency, Evidence and the Return Date

Freezing-order applications are often urgent. They may be made without notice where giving notice would be likely to defeat the purpose of the order, but the applicant must justify that on the evidence. Not every application is made without notice. An application under Order 37A must be heard by a Judge (rule 37A.09). How quickly it is heard depends on the Court's availability, the urgency shown and the state of the applicant's evidence.

A without-notice applicant owes the Court a duty of full and frank disclosure of all material facts — including possible defences known to the applicant and anything that casts doubt on its ability to meet the undertaking as to damages from assets within Australia (Practice Note para 4.17). Failure to comply can lead to the order being discharged and to adverse costs consequences.

Rule 37A.02(5) says the supporting affidavits must, as far as possible, address:

• the judgment obtained or, if none, the basis of the claim, its amount and (on a without-notice application) the applicant's knowledge of any possible defence;
• the nature and value of the respondent's assets within and outside Australia, so far as known;
• the relevant matters referred to in rule 37A.05; and
• the identity of anyone other than the respondent whom the applicant believes may be affected by the order, and how they may be affected.

A draft order based on Form 37AA is normally provided. A without-notice order ordinarily lasts only until a return date that should be as early as practicable — usually not more than a day or two after the order is made (Practice Note para 4.7). At that hearing the respondent can be heard and the applicant bears the onus of showing the order should continue. Separately, anyone served with or notified of the order may apply at any time to vary or discharge it so far as it affects them (Form 37AA para 3). The respondent has liberty to apply on short notice, and its application to vary or discharge the order will normally be treated as urgent (Practice Note para 4.8).

Service. When served, the order must be accompanied by the summons, the material relied on (other than material the Court treats as confidential), a transcript or note of oral allegations and submissions, and the originating motion or draft (rule 37A.07). The general framework for urgent interlocutory relief is in our guide to urgent injunctions in Victoria.

Undertakings and Security

As a condition of the order, the Court will normally require the applicant to give undertakings, including the usual undertaking as to damages (Practice Note para 4.14). In the standard form, the applicant undertakes to submit to any order the Court considers just for compensation to any person, whether or not a party, affected by the order. The applicant also undertakes to serve the order, pay third parties' reasonable costs, not use information obtained for other proceedings without leave, and not seek to enforce the order overseas without leave (Form 37AA Schedule A).

If it is demonstrated that the applicant has or may have insufficient assets in the jurisdiction to give substance to the undertaking, it may be required to provide security (para 4.15) — for example, a bank undertaking (Form 37AA Schedule A(8)). Whether security is required, and in what amount, is a matter for the Court's discretion. The High Court in Cardile at [53] noted the practical difficulties that can arise in quantifying and recovering damages under the undertaking, which is one reason for caution.

Interstate and Overseas Assets

A freezing order operates in personam — on the person bound by it — so the Court's power depends on its jurisdiction over that person, not on where the assets are. A Victorian order can therefore restrain dealings with land, accounts or shares in another State, or overseas, without a separate application where the asset is located.

Interstate. The Service and Execution of Process Act 1992 (Cth) (opens in a new tab) allows initiating process issued in Victoria to be served in another State, subject to the Act's service requirements (s 15). Service is separate from enforcement. Part 6 allows a Victorian order requiring a person not to do an act to be registered in the appropriate court of another State by lodging a sealed copy (ss 3, 105(1)). For a Victorian Supreme Court order, the appropriate court is the other State's Supreme Court (s 105(6)(a)). Once registered, it has the same force and effect there, subject to the Act's enforcement limits, including stays; it can be enforced only if, and to the extent that, it remains enforceable in Victoria when enforcement is taken or proposed (s 105(2), (5)). Whether registration or another local step is useful — for example, to deal with a third party located interstate — is a practical question for advice.

Overseas. The Court can make a worldwide freezing order. In Huang at [23]–[28], the majority held that the Federal Court's equivalent rule does not require the applicant to show a realistic possibility of enforcing the eventual judgment in each foreign country, because the order operates on the person. At [30] the majority added that courts must ensure a worldwide order does not become an instrument of oppression, and that likely utility is relevant to the discretion. The standard form protects people abroad: the order does not affect anyone outside Australia except the respondent and its officers and agents, persons subject to the Court's jurisdiction who have notice and can prevent a breach, and others only to the extent a foreign court enforces it. Third parties may comply with their legal obligations where the assets are located. Service out of Australia is governed by Order 7 of the Rules. Enforcing or seeking similar relief overseas requires the Court's leave and local advice.

If You Have Been Served with a Freezing Order

1. Comply immediately. Treat the order as binding as soon as you know of it, even if you think it should not have been made. Ordinary steps such as paying a supplier, transferring money between accounts or settling a sale can be a breach unless an exception covers them.
2. Get urgent legal advice and note the return date and the deadline for any asset-disclosure affidavit.
3. Prepare the asset disclosure. The standard form usually requires you to inform the applicant in writing of your assets, then swear an affidavit within a set number of working days.
4. Consider self-incrimination. An individual who objects that disclosure may tend to prove an offence or civil-penalty liability must follow section 128A of the Evidence Act 2008 (Vic) (opens in a new tab): disclose the unobjectionable information, put the rest in a sealed affidavit for the Court, and file and serve a separate affidavit explaining the objection. The Court decides whether the objection has reasonable grounds. If it does, the sealed information is returned unless the Court orders disclosure because it concerns only Australian law and the interests of justice require it. If information is disclosed, the person receives a certificate that generally prevents its use, and evidence derived from it, against them in Victorian proceedings; pre-existing documents annexed to the affidavit are not protected. Companies have no privilege against self-incrimination (s 187).
5. Decide whether to challenge. Common grounds are that the applicant lacks a good arguable case, that there is no real danger of dissipation, that the order is wider or larger than necessary, or that a without-notice applicant failed to make full and frank disclosure.
6. Seek a variation where needed — for example, to increase living or legal expense allowances, allow a particular transaction, or substitute security for the freeze.
7. Keep the undertaking in mind. If the order is later found to have been wrongly made, you can ask the Court to enforce the applicant's undertaking to compensate you.

Other Asset-Preservation Remedies

A freezing order is not the only way to preserve property, and it is not always the right one.

• Ordinary injunctions over disputed property. Where the applicant claims the property itself — for example trust property, or estate assets pending a family provision (TFM) claim — an ordinary interlocutory injunction preserving that property may be more appropriate than a freezing order.
• Family law. Disputes about property after separation are usually dealt with in the family law courts, which have their own injunction powers under the Family Law Act 1975 (Cth).
• Corporations Act orders. Section 1323 of the Corporations Act 2001 (Cth) (opens in a new tab) allows the Court, on application by ASIC or an aggrieved person, to make asset-preservation orders where there is an investigation, prosecution or civil proceeding about a possible contravention of the Act.
• Insolvency and bankruptcy. Where a debt is undisputed, creditor remedies such as statutory demands, bankruptcy proceedings and winding-up applications may be more direct. See our creditor insolvency and enforcement service.

Freezing Orders in Commercial Disputes

A Victorian commercial claim may justify a freezing-order application where there is evidence of a real danger to enforcement. These are illustrative situations, not reported cases or automatic grounds for an order:

• a supplier suing for unpaid invoices discovers that the debtor company is transferring its receivables to a related entity for no apparent commercial reason;
• a company brings a claim against a former employee for misappropriating funds and has evidence that the employee is moving the proceeds offshore;
• a liquidator brings a voidable-transaction recovery claim and has evidence that the recipient is disposing of assets that could satisfy a judgment.

In many cases a freezing order is sought in support of a substantive commercial proceeding. Where there is time, our guides to resolving a business dispute before court and commercial debt recovery explain the usual pre-court steps.

Asset Preservation in Estate Litigation

The right remedy depends on the claim. For example, an estate may have a money claim against an executor alleged to have diverted estate funds to a personal account, or against a former attorney alleged to have misused the deceased's money. A freezing order may be appropriate if the claim and evidence satisfy the test above; allegations alone are not enough.

By contrast, if an executor proposes to distribute a Victorian estate while a family provision (TFM) claim is pending, an applicant may seek an ordinary interlocutory injunction restraining distribution and preserving estate assets until the claim is resolved. That is not necessarily a freezing order. A beneficiary's receipt of an early distribution does not by itself justify freezing their assets: a claim against them or the third-party grounds in rule 37A.05(5) would need to be established.

Freezing orders sit alongside more common estate remedies such as injunctions restraining distribution of the estate, probate caveats and applications to remove an executor. Background on those mechanisms is in our guides to family provision claims in Victoria, probate caveats in Victoria and removing or replacing an executor in Victoria.

Costs Risks

Freezing-order applications can be expensive to run. They are often prepared on compressed timelines, with counsel briefed and several affidavits sworn. Actual costs vary substantially with the complexity of the dispute, the evidence required and the respondent's response.

The Court may make any costs order it considers appropriate, including about the costs of anyone affected by the order (rule 37A.08). An unsuccessful applicant may be ordered to pay the respondent's costs, and indemnity costs are possible where an application lacked a proper basis or disclosure was inadequate. The general framework is in our guide to costs consequences in Victorian litigation.

Some disputes that look like freezing-order cases can be handled more cheaply with a well-targeted letter of demand, an undertaking from the respondent or focused disclosure orders — but where there is a genuine danger of dissipation, warning the respondent may itself be the risk.

Consequences of Breach

The standard form carries a penal notice warning that a person who disobeys the order is liable to imprisonment, sequestration of property or other punishment, and that any other person who knows of the order and helps or permits a breach may be similarly punished. In practice this can include:

• fines;
• sequestration, where the Court appoints a sequestrator to take control of the contemnor's property;
• imprisonment in serious cases involving an individual;
• proceedings against directors and officers where a company is in breach; and
• proceedings against third parties — including banks, accountants and other professionals — who knowingly help a breach.

Contempt must be charged and proved beyond reasonable doubt in a properly brought application. In Witham v Holloway (1995) 183 CLR 525 (opens in a new tab), the High Court held that this standard applies to all charges of contempt, whether civil or criminal (joint reasons at [19]). It is not the test for obtaining a freezing order. The outcome depends on the nature of the breach, the evidence and the Court's discretion. If you are unsure whether a step is permitted, stop, take advice and, where appropriate, seek a variation first.

Why Early Legal Advice Matters

For applicants, the strength of the first application depends on evidence gathered quickly, a test addressed squarely, full and frank disclosure and a precisely drafted order. For respondents, the period before the return date is often decisive: compliance, disclosure and any challenge must be managed at the same time.

Parke Lawyers advises business owners, creditors, directors, shareholders, executors and beneficiaries on urgent asset-protection litigation in the County and Supreme Courts of Victoria. Our litigation and dispute resolution practice works closely with our commercial and business law and estate litigation and TFM claims teams.

Freezing orders are often considered alongside their evidentiary counterpart — search orders (formerly Anton Piller orders) in Victoria — where there is a real risk that documents or digital evidence will be destroyed before they can be produced.

Frequently Asked Questions