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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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The Family Law Amendment Bill 2024 seeks to modernise and improve Australia's family law system, focusing on the key areas of property division and family violence. According to Commonwealth Attorney-General Mark Dreyfus KC, these reforms are intended “to make the division of property and finances safer, simpler, and fairer for separating families, especially where family violence is present.

Considering an LLM? A Graduate Certificate in Applied Law could be a smarter first step

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Considering an LLM? A Graduate Certificate in Applied Law could be a smarter first step

Looking to boost your legal career but not ready to dive into a full-on Master of Laws (LLM)? The Graduate Certificate in Applied Law might be the answer. Offering a flexible and affordable way to upskill, the Graduate Certificate is perfect for busy legal professionals who want to sharpen their skills or master a particular field.

Freezing orders or interlocutory injunctions in TFMs with Tasman Fleming

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Freezing orders or interlocutory injunctions in TFMs with Tasman Fleming

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.

How David Peaston, Best Graduating Student in Wills & Estates, juggled work, life and an LLM

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How David Peaston, Best Graduating Student in Wills & Estates, juggled work, life and an LLM

David Peaston has done it all: co-owned a Perisher Valley ski lodge, expanded the family electrical manufacturing business which was then sold to a public company, serving as COO to the purchasing company. In 2008, he returned to the law, and in 2016, established his own practice focussing on wills and estates, property and commercial law.

Lockdown lifts, but tensions may remain, says best graduating FDRP Renee Toy

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Lockdown lifts, but tensions may remain, says best graduating FDRP Renee Toy

Mediator and former family lawyer Renee Toy knows human conflict does not pause, even during the Great Pause of 2020. Renee was recently recognised as the College’s best graduating student of Family Dispute Resolution Practice (FDRP), a prize generously sponsored by Barry.Nilsson.Lawyers

5 Ways the Legal Profession is Set to Change in the Next 50 Years

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5 Ways the Legal Profession is Set to Change in the Next 50 Years

It’s no secret that the legal profession has been undergoing a paradigm shift. Factors such as the Global Financial Crisis, the advancement of technology and the growing number of law students have led to the streamlining of many law firms, the automation of many tasks and fierce competition between a larger pool of lawyers for a smaller range of roles. What are the implications? What will the legal profession look like in fifty years?

Amendments to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld)

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Amendments to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld)

The REIQ contract for houses and residential land and REIQ contract for residential lots in a community title scheme have been amended as of 7 June 2024. Tara Cush, lecturer at the College of Law Queensland, provides an overview of how these amendments will impact REIQ contracts. 

How I broke into… Business law with Andrew Boog

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How I broke into… Business law with Andrew Boog

Insights spoke to Andrew Boog about how he came to be a business law expert, what he enjoys most about the field, and what advice he might have for lawyers looking to move into business law.

Naaman v Jaken: No Fiduciary Duty To Successive Trustees

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Naaman v Jaken: No Fiduciary Duty To Successive Trustees

The High Court has clarified the relationship between successive trustees in the recent decision of Naaman v Jaken Properties. Tasman Fleming, barrister and nationally accredited mediator (NMAS) and adjunct lecturer at the College of Law, reviews this significant case which addresses whether a successor trustee owes fiduciary obligations to a former trustee in respect of that former trustee's right of indemnity.

The Legal Operations role is indispensable to today’s law firms as well as to legal departments

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The Legal Operations role is indispensable to today’s law firms as well as to legal departments

To navigate a rapidly changing sector, the role of Head of Legal Operations has sprung into life. 

Meet Sian Ogge, Best Graduating Student in Wills & Estates

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Meet Sian Ogge, Best Graduating Student in Wills & Estates

Learn how Sian Ogge was promoted to Senior Associate after completing an LLM in Applied Law (Wills & Estates), in which she was recently named Best Graduating Student.

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