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Freezing orders or interlocutory injunctions in TFMs with Tasman Fleming

Published:
14 Nov 2024
News

Wenee Yap

Legal Features Writer for the College of Law
Freezing orders or interlocutory injunctions in TFMs with Tasman Fleming

Freezing orders and interlocutory injunctions are court orders that can be used to protect the interests of parties in Testator Family Maintenance (TFM) proceedings.

Tasman Ash Fleming, a barrister and accredited mediator (NMAS), highlights the importance of considering what is the purpose of the order sought. This article looks at the recent decision in Re Estate of Hagendorfer (Injunction) [2024] VSC 482 (‘Hagendorfer’) and addresses potential risks and provides guidance for practitioners to mitigate these risks.

 

What are freezing orders?

“A freezing order or Mareva order is a particular order to prevent frustration or abuse of process of the court and may be made without notice,” Tasman explains.

“In making a freezing order, the Court shall have regard to the practice note (at [37A(4)] Supreme Court (General Civil Procedure) Rules),” Tasman says. This is a Supreme Court Practice note.

Practice Note SC Gen 17 Freezing Orders states that “The purpose of a freezing order is to prevent frustration or abuse of the process of the Court, not to provide security in respect of a judgment or order.” (at [4.2])

“Form 37AA is used to apply without notice,” Tasman says. “If the application for a freezing order is successful, the matter will return to court and the respondent will be given an opportunity to respond. The freezing order will need to allow access to funds to allow reasonable living, legal, or business expenses.”

 

Interlocutory injunctions in TFM

A party could apply for an order such as this where there is a concern that an asset would be distributed or otherwise moved,” Tasman explains.Justice Gorton granted an order in the recent case of Hagendorfer.”

In Hagendorfer, the estate consisted of $896,210.27. The Deceased had four surviving children and had appointed one executor.

The estate had been left to her and another sibling in equal shares. There was no provision for the plaintiff and another sibling. The plaintiff made an application for provision under Part IV of the Administration and Probate Act 1958, within the requisite 6-month period. However, by this point, the estate had been distributed without notice to the executrix and the other named beneficiary who had used it in part to pay down their mortgages.”

The plaintiff sought a freezing order or interlocutory injunction restraining the beneficiaries from disposing of their properties.

The Court granted an interlocutory injunction which sought to maintain the status quo, rather than a freezing order,” Tasman says.

The form of order used was, “Until further order, Ms Natasha Donna Hagendorfer not sell, transfer, dispose of or further encumber the property.” A similar order enjoined the other named beneficiary.

 

What key factors does a Court consider when granting a TFM Injunction?

The plaintiff will need to demonstrate an arguable case,” Tasman says. “In Hagendorfer the plaintiff needed to show an arguable case against the estate and the named beneficiaries.”

It is not necessary to demonstrate that the claim will be successful, as such a finding may not be possible until a full hearing.”

Nevertheless, a plaintiff will still need to be eligible to make a claim pursuant to Part IV of the Administration and Probate Act 1958 and it will still need to be made within six months of the grant of probate,” Tasman says.

In Hagendorfer, the court determined the plaintiff had a claim because she had  made a claim within six months and was ‘a daughter of the deceased with limited assets who does not own a home, for whom no provision was made out of a reasonably substantial estate, and for whom provision had been made in a prior will.’ (at [5]).”

 

Does it matter that the estate had been distributed?

No,” Tasman says. “Distribution is not a barrier to an interlocutory injunction in a TFM matter. Even where there has been a final distribution, there can still be an order for a distribution made out of the estate that has purported to be distributed.”

 

What is the right order in a TFM matter?

Consider the purpose of the orders sought,” Tasman says. “If you wish to prevent frustration or abuse of the Court, a freezing order would be suitable. If the purpose is to provide security, an interlocutory injunction would be more appropriate.”

In Hagendorfer, the Court found that, “the high hurdle that the Court requires applicants for a freezing order to leap applies particularly where a claimant has a claim for compensation and seeks to prevent the respondent to that claim from spending their own money in a way that would render them unable to meet an award. The same principles do not apply quite the same way, it seems to me, where the allegation is that a person has obtained an asset or a sum of money to which they are not entitled, and the relief is directed at ensuring only that that asset or sum of money, in substance, remain in place so that it may be recovered if the claim is successful.” (at [18]).”

It is likely that interlocutory injunctions would usually be more appropriate in these types of cases,” Tasman concludes. Where a claim may arise, it is important to make these orders as soon as possible.

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Advocating for your client in court can be intimidating.  Doing it effectively requires a range of abilities: from case analysis and making oral submissions, to cross-examining witnesses in criminal trials, and being able to put forward a strong and persuasive case.
Advocating for your client in court can be intimidating.  Doing it effectively requires a range of abilities: from case analysis and making oral submissions, to cross-examining witnesses in criminal trials, and being able to put forward a strong and persuasive case.
Being able to cross-examine and re-examine a witness is an important skill for an advocate. Whether you’re trying to elicit new evidence favourable to your client’s case or discredit your opponent’s evidence, your ability to do it effectively will have a significant impact on the outcome of your client’s case. In this course, you'll learn the essential skills for effective cross-examination and re-examination.
Being able to cross-examine and re-examine a witness is an important skill for an advocate. Whether you’re trying to elicit new evidence favourable to your client’s case or discredit your opponent’s evidence, your ability to do it effectively will have a significant impact on the outcome of your client’s case. In this course, you'll learn the essential skills for effective cross-examination and re-examination.
“Bail” is the authority to be at liberty for an offence or an alleged offence. There are five key steps in the process and with this course, you will learn how to take instructions, outline the law, carry out the steps and present an application.
“Bail” is the authority to be at liberty for an offence or an alleged offence. There are five key steps in the process and with this course, you will learn how to take instructions, outline the law, carry out the steps and present an application.
Do you know the ins and outs of purchasing properties off the plan as opposed to purchasing existing properties in New South Wales? At the end of this course, you’ll be able to Identify common off-the-plan sales concepts, draft checklists for advising a client on an off-the-plan sale contract, prepare to advise a client on an off-the-plan sale transaction
Do you know the ins and outs of purchasing properties off the plan as opposed to purchasing existing properties in New South Wales? At the end of this course, you’ll be able to Identify common off-the-plan sales concepts, draft checklists for advising a client on an off-the-plan sale contract, prepare to advise a client on an off-the-plan sale transaction
This course will equip you with the skills to draft legal documents that precisely state the legal issue, statements of the client and any remedies sought. 
This course will equip you with the skills to draft legal documents that precisely state the legal issue, statements of the client and any remedies sought. 
From case analysis and cross-examination to drafting and oral submissions. These skills, coupled with court etiquette, will enable you to advocate for your clients with conviction.  This bundle will build your capabilities across four essential – and practical – modules.
From case analysis and cross-examination to drafting and oral submissions. These skills, coupled with court etiquette, will enable you to advocate for your clients with conviction.  This bundle will build your capabilities across four essential – and practical – modules.
A carefully drafted contract must be precise, comprehensive, free of contradictions, grammatically accurate and have clear legal interpretation. It’ is a crucial skill that every lawyer must acquire. 
A carefully drafted contract must be precise, comprehensive, free of contradictions, grammatically accurate and have clear legal interpretation. It’ is a crucial skill that every lawyer must acquire. 
20 February 2025, 1.30pm to 4.45pm AEDT. Enhance your legal drafting skills and learn how to master planning techniques, tailor client-focused communications, and refine your abilities through practical exercises.
20 February 2025, 1.30pm to 4.45pm AEDT. Enhance your legal drafting skills and learn how to master planning techniques, tailor client-focused communications, and refine your abilities through practical exercises.
This course will guide you through the processes, complexities and risks when dealing with this substitute decision-making instrument. 
This course will guide you through the processes, complexities and risks when dealing with this substitute decision-making instrument. 
Identifying your client’s objectives is critical when advising on business structures, because every structure has different legal and/or taxation consequences associated with it.  This course looks at the most commonly available entities used when structuring a business and looks at some of the advantages and disadvantages of each of those entities. 
Identifying your client’s objectives is critical when advising on business structures, because every structure has different legal and/or taxation consequences associated with it.  This course looks at the most commonly available entities used when structuring a business and looks at some of the advantages and disadvantages of each of those entities. 
This course will focus on reducing and managing risk for your client through the drafting and negotiation of contractual clauses with a particular focus on indemnities given their importance to risk allocation.
This course will focus on reducing and managing risk for your client through the drafting and negotiation of contractual clauses with a particular focus on indemnities given their importance to risk allocation.
Evidence-in-chief (when a witness is being questioned in court by the party that called them to appear) is key to building a strong foundation for your case. Whether you’re the defence or prosecution, you need to approach the questioning of your witnesses strategically. 
Evidence-in-chief (when a witness is being questioned in court by the party that called them to appear) is key to building a strong foundation for your case. Whether you’re the defence or prosecution, you need to approach the questioning of your witnesses strategically. 
This course will provide you with the knowledge, insights and a framework for preparing affidavits, including interviewing clients and recording statements. 
This course will provide you with the knowledge, insights and a framework for preparing affidavits, including interviewing clients and recording statements. 
The College of Law in conjunction with our teaching partners, the Society of Notaries of New South Wales, is authorised to conduct training for barristers or solicitors of not fewer than five (5) years standing, who wish to apply for appointment as a Public Notary under the Public Notaries Act 1997 (NSW). Successful completion of this course will enable you to apply to the Legal Profession Admissions Board (LPAB) for appointment by the Supreme Court of NSW as a Public Notary.
The College of Law in conjunction with our teaching partners, the Society of Notaries of New South Wales, is authorised to conduct training for barristers or solicitors of not fewer than five (5) years standing, who wish to apply for appointment as a Public Notary under the Public Notaries Act 1997 (NSW). Successful completion of this course will enable you to apply to the Legal Profession Admissions Board (LPAB) for appointment by the Supreme Court of NSW as a Public Notary.
A shareholder agreement is a written agreement between shareholders or partners of a business and it outlines the obligations and responsibilities of the business owners. It’s intended to ensure that shareholders are treated fairly and their rights are protected.
A shareholder agreement is a written agreement between shareholders or partners of a business and it outlines the obligations and responsibilities of the business owners. It’s intended to ensure that shareholders are treated fairly and their rights are protected.
This course will step you through the critical stages of a commercial contract. As you progress, you’ll unpack a practical scenario to examine the theory in action. You’ll gain practical skills to guide your clients with confidence through establishing a commercial contract. And you’ll learn about essential considerations along the way – from pre-formation through to contract termination.
This course will step you through the critical stages of a commercial contract. As you progress, you’ll unpack a practical scenario to examine the theory in action. You’ll gain practical skills to guide your clients with confidence through establishing a commercial contract. And you’ll learn about essential considerations along the way – from pre-formation through to contract termination.
Knowing how and when a party should exercise its termination rights and drafting termination clauses for inclusion in agreements are important skills for a commercial lawyer.
Knowing how and when a party should exercise its termination rights and drafting termination clauses for inclusion in agreements are important skills for a commercial lawyer.
This course will give you the skills to prepare a quality brief for counsel with confidence.
This course will give you the skills to prepare a quality brief for counsel with confidence.
Get your comprehensive guide to initiating and managing criminal matters in the Local Court of New South Wales or on appeal
Get your comprehensive guide to initiating and managing criminal matters in the Local Court of New South Wales or on appeal
This course provides you with essential insights to improve your communication skills as you unpack a practical case study on suspected money laundering. You’ll gain strategies and techniques to exercise judgement and demonstrate best-practice client communications.
This course provides you with essential insights to improve your communication skills as you unpack a practical case study on suspected money laundering. You’ll gain strategies and techniques to exercise judgement and demonstrate best-practice client communications.
This course will provide you with an understanding of fundamental community title concepts; the various forms of community title subdivision; and community, neighbourhood and precinct schemes.
This course will provide you with an understanding of fundamental community title concepts; the various forms of community title subdivision; and community, neighbourhood and precinct schemes.
Want to draft and execute your clients’ wills and estates with confidence and clarity? This course bundle will build your capabilities across four essential – and practical – modules.
Want to draft and execute your clients’ wills and estates with confidence and clarity? This course bundle will build your capabilities across four essential – and practical – modules.
Bolster your knowledge and skills across business transactions. And empower your clients to manage risk and achieve their commercial objectives. This course bundle will build your capabilities across four essential – and practical – modules.
Bolster your knowledge and skills across business transactions. And empower your clients to manage risk and achieve their commercial objectives. This course bundle will build your capabilities across four essential – and practical – modules.
In this short course, you'll learn the different methods you can use to enforce judgments on behalf of your clients.
In this short course, you'll learn the different methods you can use to enforce judgments on behalf of your clients.
The criminal justice system establishes the basis for fair representation, contributes to accountability for individuals' actions and safeguarding fundamental rights—an insight emphasised in the Essential Guide to Criminal Law Bundle. Tailored for those seeking a comprehensive overview in New South Wales through four practical modules with interactive activities and downloadable resources.
The criminal justice system establishes the basis for fair representation, contributes to accountability for individuals' actions and safeguarding fundamental rights—an insight emphasised in the Essential Guide to Criminal Law Bundle. Tailored for those seeking a comprehensive overview in New South Wales through four practical modules with interactive activities and downloadable resources.
In this short course, learn the main principles of a debt recovery matter for liquidated claims and the procedure to conduct and implement an undefended debt recovery matter in the District Court.
In this short course, learn the main principles of a debt recovery matter for liquidated claims and the procedure to conduct and implement an undefended debt recovery matter in the District Court.
18 February 2025, 9.00am to 11.15am AEDT. In this live webinar, you will be guided through critical information to understand the process, complexities, associated risks and dispute resolution methods when dealing with this substitute decision making instrument.
18 February 2025, 9.00am to 11.15am AEDT. In this live webinar, you will be guided through critical information to understand the process, complexities, associated risks and dispute resolution methods when dealing with this substitute decision making instrument.
Stay ahead of current privacy laws and proposed changes. This course equips legal professionals with essential insights and practical steps for compliance. Join us to master the evolving legal landscape.
Stay ahead of current privacy laws and proposed changes. This course equips legal professionals with essential insights and practical steps for compliance. Join us to master the evolving legal landscape.
By focusing on the resolution of financial issues, including property settlement and spouse maintenance, this course will help you better support your clients during this difficult process. It will guide you through the steps in making an initiating application for financial orders in the Federal Circuit and Family Court of Australia (FCFCOA). 
By focusing on the resolution of financial issues, including property settlement and spouse maintenance, this course will help you better support your clients during this difficult process. It will guide you through the steps in making an initiating application for financial orders in the Federal Circuit and Family Court of Australia (FCFCOA). 
Understanding the law of evidence is key to constructing a robust case for your client.  In a criminal proceeding, the rules of evidence govern what is admissible or inadmissible in a trial and the procedures that must be followed in obtaining evidence
Understanding the law of evidence is key to constructing a robust case for your client.  In a criminal proceeding, the rules of evidence govern what is admissible or inadmissible in a trial and the procedures that must be followed in obtaining evidence
Boost your confidence and establish a strong foundation of knowledge with our comprehensive step-by-step guide on family law matters. The four modules will guide you to provide expert family law advice to your clients.
Boost your confidence and establish a strong foundation of knowledge with our comprehensive step-by-step guide on family law matters. The four modules will guide you to provide expert family law advice to your clients.
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