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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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In this course you’ll learn about what elements make commercial leases distinct entities, covering properties such as shops, factories and offices. 
In this course you’ll learn about what elements make commercial leases distinct entities, covering properties such as shops, factories and offices. 
This course will provide you with an understanding of fundamental strata concepts; the various forms of strata subdivision; and community, neighbourhood and precinct schemes.
This course will provide you with an understanding of fundamental strata concepts; the various forms of strata subdivision; and community, neighbourhood and precinct schemes.
26 February 2025, 9.30am to 1.30pm AEDT. ​Enhance your expertise in testamentary trusts with this more advanced course, perfect for providing precise advice to clients. Led by Accredited Specialist Robert Monahan, you'll refine your skills in preparing testamentary trusts, managing risks, and understanding tax implications.​
26 February 2025, 9.30am to 1.30pm AEDT. ​Enhance your expertise in testamentary trusts with this more advanced course, perfect for providing precise advice to clients. Led by Accredited Specialist Robert Monahan, you'll refine your skills in preparing testamentary trusts, managing risks, and understanding tax implications.​
This course will equip you with guidelines to follow when instructed to administer a deceased estate. You’ll know which processes to follow when the deceased person dies leaving a valid will (testate) or without leaving a valid will (intestate).
This course will equip you with guidelines to follow when instructed to administer a deceased estate. You’ll know which processes to follow when the deceased person dies leaving a valid will (testate) or without leaving a valid will (intestate).
Enhance your career and skills using the Interdisciplinary Collaborative Practice (ICP) model as either a lawyer, coach or expert consultant. ICP is a proven method of alternative dispute resolution that emphasises a team-based holistic approach to managing a family breakdown and resolving disputes.
Enhance your career and skills using the Interdisciplinary Collaborative Practice (ICP) model as either a lawyer, coach or expert consultant. ICP is a proven method of alternative dispute resolution that emphasises a team-based holistic approach to managing a family breakdown and resolving disputes.
20 March 2025, 10.00am to 11.00am AEDT Learn about the recent changes in Wills and Estates practice, including will drafting essentials, the use of testamentary trusts in estate planning, superannuation, trusts, incapacity and will challenges.
20 March 2025, 10.00am to 11.00am AEDT Learn about the recent changes in Wills and Estates practice, including will drafting essentials, the use of testamentary trusts in estate planning, superannuation, trusts, incapacity and will challenges.
Want to provide expert advice and guide your clients through residential and commercial property transactions with ease? This bundle of step-by-step guides will build your capabilities across four essential – and practical modules.
Want to provide expert advice and guide your clients through residential and commercial property transactions with ease? This bundle of step-by-step guides will build your capabilities across four essential – and practical modules.
This interactive course will equip you with a step-by-step overview of e-conveyancing when acting for vendors or purchasers in real property transactions.
This interactive course will equip you with a step-by-step overview of e-conveyancing when acting for vendors or purchasers in real property transactions.
This course explores the intricate practice and procedure aspects in both the Federal Courts and the Supreme Court of New South Wales.
This course explores the intricate practice and procedure aspects in both the Federal Courts and the Supreme Court of New South Wales.
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.
This course will teach you how to correctly draft wills, minimise negligence claims and tailor each will to your clients’ needs and circumstances. 
This course will teach you how to correctly draft wills, minimise negligence claims and tailor each will to your clients’ needs and circumstances. 
Upskill in probate law to provide clarity and certainty during these challenging times. This course will guide you through the processes, complexities and risks when dealing with probate. You’ll learn how to distribute the assets of the estate according to the requirements of the will.
Upskill in probate law to provide clarity and certainty during these challenging times. This course will guide you through the processes, complexities and risks when dealing with probate. You’ll learn how to distribute the assets of the estate according to the requirements of the will.
This bundle will build your capabilities across four essential – and practical modules. You’ll learn Supreme and Federal Court practice and procedure, pre-trial procedure, case preparation, pleadings and contract claims in the District Court.
This bundle will build your capabilities across four essential – and practical modules. You’ll learn Supreme and Federal Court practice and procedure, pre-trial procedure, case preparation, pleadings and contract claims in the District Court.
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. 
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
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.
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.
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.
10 December 2024, 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.
10 December 2024, 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.
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.
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.
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.
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.
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
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