In this practice area
Urgent court orders to stop harmful conduct, preserve assets or secure evidence, including interlocutory injunctions, freezing orders and search orders.
When urgent relief is needed
Some disputes cannot wait for a final hearing. A former executive may be using confidential information to solicit clients. A counterparty may be about to call on a bank guarantee, sell a key asset or transfer funds offshore. A meeting may have been called to remove directors on invalid notice. In these situations, the court can make interim orders to hold the position until the dispute is decided.
Urgent applications can be made within days, and in genuine emergencies within hours, including out of court hours through the duty judge. Parties defending an application also need to move quickly, because orders made without notice can seriously disrupt a business.
The legal framework
The NSW Supreme Court has power to grant injunctions under section 66 of the Supreme Court Act 1970 (NSW) and its inherent jurisdiction. The Federal Court has equivalent powers. To obtain an interlocutory injunction, the applicant must generally show a serious question to be tried, or a prima facie case, and that the balance of convenience favours the order, including whether damages would be an adequate remedy. The High Court restated these principles in Australian Broadcasting Corporation v O'Neill. The applicant is usually required to give the usual undertaking as to damages, which exposes it to paying the respondent's losses if the order should not have been made.
Freezing orders, once called Mareva injunctions, are governed in the NSW Supreme Court by Division 2 of Part 25 of the Uniform Civil Procedure Rules 2005 and in the Federal Court by Division 7.4 of the Federal Court Rules 2011. The applicant must show a good arguable case and a danger that a judgment will go wholly or partly unsatisfied because assets may be removed from Australia or disposed of, dealt with or diminished in value. Search orders, once called Anton Piller orders, are governed by Division 3 of Part 25 and allow the applicant's representatives to enter premises to identify and preserve important evidence. They require a strong prima facie case, potential or actual loss that is very serious, and a real possibility that the evidence will be destroyed or otherwise made unavailable.
How these matters typically run
An urgent application is prepared on affidavit evidence, with a draft order and, where needed, a summons or statement of claim for the substantive dispute. Applications made without notice to the other side attract a strict duty of full and frank disclosure. A failure to disclose material facts, including facts that hurt the applicant's case, can lead to the order being set aside.
If an order is made, the matter usually returns to court within days for a hearing with both parties present. Many disputes settle at or after that return date, because the interim orders clarify each side's position and costs exposure.
How we act
We prepare and run urgent applications for applicants and respond to them for respondents. For applicants, we test the evidence and the undertaking as to damages before going to court. For respondents, we move to vary or discharge orders that are too broad or were obtained without proper disclosure.