CIVIL PROCEDURE — Interim preservation — Freezing orders — whether freezing orders should be made in aid of final relief being sought in extant Federal Court proceedings — whether freezing orders should be made in support of contemplated relief in Supreme Court in respect of Supreme Court garnishee order — whether applicant demonstrated a prima facie case that garnishee order was an abuse of process or entered against good faith — whether other requirements for freezing orders made out — whether balance of convenience favours grant of freezing orders
Quick Take
1A freezing order under UCPR r 25.11 may be granted in aid of prospective relief in the same court (here, a challenge to a garnishee order as an abuse of process), even where the primary substantive dispute is being litigated in another court, provided the applicant demonstrates a prima facie case and the balance of convenience favours the order.
2The 'pay now, argue later' policy underpinning security of payment legislation remains a weighty discretionary consideration when a court is asked to restrain enforcement of an adjudication determination, but it does not preclude short-term freezing orders where there is evidence of a risk of insolvency and arguable abuse of process in the manner of enforcement.
3Where a garnishee order is obtained in one jurisdiction while a stay application concerning the same adjudication judgment is pending in another, and the party obtaining the order fails to disclose the pending stay application, those circumstances may combine to establish an arguable case of abuse of process, though no single factor alone would likely suffice.
