Next Constructions Pty Ltd (Subject to a Deed of Company Arrangement) v Ryan

The Court held that defendants who gave undertakings by consent in lieu of freezing orders were not required to demonstrate 'special or exceptional circumstances' to be released from those undertakings where the consent orders included liberty to apply; the standard of a material change in circumstances sufficed. The Court released the defendants from their undertakings and substituted restraining orders permitting access to the frozen fund for reasonable legal costs and up to $1,500 per week in living expenses, on the basis that the Mepunga Property sold for substantially less than anticipated, leaving the defendants unable to fund their defence or meet ordinary living expenses without access to the restrained fund. The Court confirmed that undertakings given in lieu of freezing orders cannot operate to provide a plaintiff with security for a future judgment at the expense of a defendant's ability to pay legal costs and living expenses.