Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 8 – Preservation of rights and property
- Part 1 – Inspection, detention and preservation of property
- [250] Inspection, detention, custody and preservation of property
- [251] Perishable property
- [252] Order affecting non-party
- [253] Service of application
- [254] Order before proceeding starts
- [255] Jurisdiction of court not affected
- [255A] Definition for pt 2
- [256] Application of pt 2
- [257] Relationship with other law
- [258] Procedure
- [259] Part 2 order without notice
- [260] Definitions for div 2
- [260A] Freezing order
- [260B] Ancillary order
- [260C] Respondent need not be party to proceeding
- [260D] Order against judgment debtor or prospective judgment debtor or third party
- [260E] Jurisdiction
- [260F] Service outside Australia of application for freezing order or ancillary order
- [260G] Costs
- [266] Application of pt 3
- [267] Consent to act as receiver
- [268] Security
- [269] Remuneration
- [270] Accounts
- [271] Default
- [272] Powers
- [273] Death of receiver
- [274] Enforcement of judgment
- Division 1 - Preliminary
- Division 2 – Freezing orders
- Division 1 – Application
- Division 2 – Receivership generally
- Division 3 – Enforcement of judgment by appointment of receiver
[250] Inspection, detention, custody and preservation of property go to top
In Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] 2 Qd R 345; [2002] QSC 42, [19] Chesterman J stated the following principles regarding the exercise by the Court of discretion under the rule:
- the discretion conferred by r 250 is a wide one and should not be limited by the superimposition of conditions not found in the rule itself;
- the order should not be made unless, on the material before the court, it is proper to do so. An order for inspection will not be made unless there is some evidence that the plaintiff’s rights are being infringed and that an inspection will facilitate proof of the claim;
- if the result of an inspection would tend to bring about the efficient and economical conduct of litigation, the court’s discretion should ordinarily be exercised in favour of granting an inspection, subject to there being some countervailing circumstance; and
- the discretion conferred by r 250 should be addressed by considering whether in all the circumstances the plaintiff has shown sufficient grounds for intruding on the defendant’s property.
An “issue” under r 250(1)(b) could be a factual or legal issue in a proceeding justifying making orders: Macdonald v Teys Australia Distribution Proprietary Ltd [2013] QDC 139, [15] (Samios DCJ) citing Alavi-Moghaddam v Woolworths Limited [2012] QDC 98, [33] (Farr J).
Monies held in a bank account will only constitute “property…the subject of a proceeding” if there is a cause of action advanced in the proceeding that seeks the return of the specific fund held in the account: [2011] 82 ACSR 352; [2011] QSC 30, [5] (McMurdo J).
[251] Perishable property go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[252] Order affecting non-party go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[253] Service of application go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[254] Order before proceeding starts go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[255] Jurisdiction of court not affected go to top
The court’s power to grant pre-litigation disclosure is based partly on the court’s equitable jurisdiction to determine an action for discovery in accordance with the Norwich principle (from Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, 175 and 191-192), recognised in Re Pyne [1997] 1 Qd R 326 (Shepherdson J): Wilkinson v Wilkinson [2009] QSC 191, p.4 (Douglas J).
Rule 255 recognizes the equitable right to seek a bill of discovery: Wilkinson v Wilkinson [2009] QSC 191, p.6 (Douglas J).
Division 1 - Preliminary
[255A] Definition for pt 2 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[256] Application of pt 2 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[257] Relationship with other law go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[258] Procedure go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[259] Part 2 order without notice go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 2 – Freezing orders
[260] Definitions for div 2 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[260A] Freezing order go to top
To obtain an order under r 260A, an applicant must show:
- First, a prima facie cause of action against the defendant; and
- A danger that, by reason of the defendant’s absconding, or of assets being removed out of the jurisdiction or within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he or she succeeds, will not be able to have his or her judgment satisfied:
Zabusky v van Leeuwen [2011] QSC 270, [21] (Daubney J), quoting Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, 321-2 (Gleeson CJ).
An applicant for Mareva-type relief must demonstrate that there is a good arguable case on an extant cause of action. There is no basis for the grant of a Mareva order, or a freezing order under r 260A, unless the applicant can point to a pre-existing cause of action which could be enforced immediately against a respondent arising out of an invasion, actual or threatened, of a legal or equitable right: Zabusky v van Leeuwen [2011] QSC 270 , [25] (Daubney J).
The principles governing the granting of interlocutory injunctions are relevant to the discretion to make freezing orders: Fairmont Suites and Hotels Pty Ltd v Duck Holes Creek Investments Pty Ltd [2009] QSC 98, [47] (Applegarth J), citing Barreaus Peninsula v Ambassador at Redcliffe Pty Ltd [2008] QSC 90, [74]-[75] (Daubney J).
A party seeking a freezing order ex parte is under a duty to make full and frank disclosure of all material facts: Gold Ribbon (Accountants) Pty Ltd (in liq) v Sheers [2003] 1 Qd R 683; [2002] QSC 400, [51], [54] (Holmes J), citing W v H [2001] 1 All ER 300, 316 (Munby J).
The risk that a defendant’s financial position might deteriorate, by incurring further liabilities, does not warrant the grant of a Mareva order under r 260A: [2011] 82 ACSR 352 [2011] QSC 30, [45] (McMurdo J).
A Mareva injunction is not designed to stop a person from sliding into insolvency and the prospect that a judgment would be unsatisfied by a developing impecuniosity of a defendant is not sufficient to entitle the plaintiff to an order: [2011] 82 ACSR 352 [2011] QSC 30, [45] (McMurdo J), citing Perpetual Nominees Ltd v Taouk [2009] NSWSC 605, [33] (Hoeben J).
The powers of the court to make freezing orders under r 260A ex parte is undoubted, but it is to be noted that, ordinarily, the kind of evidence which will be necessary to justify the making of such orders will be evidence which suggests a strong risk of dissipation of assets or a likelihood of defalcation or some other species of behaviour warranting a departure from the ordinary rules of procedural fairness: Food Channel Network Pty Ltd v Television Food Network GP (No 3) [2010] FCA 1112, [30] (Perram J).
Practice Direction 1 of 2007 governs the making of freezing orders: Mulvaney Holdings Pty Ltd v Thorne [2012] QSC 247, [7] (McMeekin J). This practice direction provides, among other things, that the applicant will bear the onus of satisfying the court that the order should be continued or renewed upon its return date; that the court may make ancillary orders; and that the “respondent” against whom a freezing order is sought may be either the person said to be liable on a substantive cause of action or some other person “who has person, custody or control or even ownership” of assets that they may be ultimately liable to disgorge.
According to Practice Direction 1 of 2007 the value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant’s claim, including interest and costs: see [2011] 82 ACSR 352 [2011] QSC 30, [45] (McMurdo J).
[260B] Ancillary order go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[260C] Respondent need not be party to proceeding go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[260D] Order against judgment debtor or prospective judgment debtor or third party go to top
The requirement of r 260D is for a “good arguable case” in the sense of a case which is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50% chance of success: [2011] 82 ACSR 352 [2011] QSC 30 [17] (McMurdo J), citing Ninemia Maritime Corporation v Trave GmbH & Co KG (the Niedersachsen) [1983] 1 WLR 1412, [190] (Mustill J).
For the purpose of r 260D(3), in assessing whether there is a danger that the judgment will be wholly or partly unsatisfied, it is not necessary for an applicant to show that the defendant intends to deal with the assets for the purpose of putting them beyond the plaintiff’s reach to prevent recovery. All that needs to be shown is that there is a danger of dissipation which is likely to prevent recovery: Creswick v Creswick [2012] QSC 174, [12] (Martin J), citing Northcorp Ltd v Allman Properties [1994] 2 Qd R 405, 407; see also [2011] 82 ACSR 352 [2011] QSC 30 , [28] (McMurdo J).
[260E] Jurisdiction go to top
Rule 260E provides that the UCPR does not work to diminish the inherent, implied or statutory jurisdiction of the court to make a freezing order or ancillary order. The test to be applied when the court is exercising its inherent jurisdiction to grant a freezing order is as follows:
- Is there a prima facie cause of action against the defendant? and
- Is there a danger that by reason of the defendant’s absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if successful, will not be able to have judgment satisfied?
Creswick v Creswick [2012] QSC 174, [9] (Martin J), citing Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, 321-322 (Gleeson CJ).
The difference between this test of a “prima facie case” and the test of a “good arguable case” as required under r 260D was noted by McMurdo J in Fletcher v Fortress Credit Corporation (Australia) II Pty Ltd (2011) 82 ACSR 352; [2011] QSC 30, [17].
As for the second part of the test referred to in Patterson, an applicant need not show that the purpose of any disposition by a defendant of assets is to prevent recovery of the amount of any judgment which might be obtained. It need only be demonstrated that there is a danger of dissipation which is likely to prevent recovery: Creswick v Creswick [2012] QSC 174, [12] (Martin J), citing Northcorp Ltd v Allman Properties [1994] 2 Qd R 405, 407.
[260F] Service outside Australia of application for freezing order or ancillary order go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[260G] Costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 3 – Search orders
[261] Definitions for div 3 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[261A] Search order go to top
A party who seeks the granting of an injunction on an ex parte basis, in reliance on r 261A has a duty to place before the Court all relevant matters including such matters which would have been raised by the respondent in his defence, if he had been present: Palaris Mining Pty Ltd v Short [2012] QSC 224, [19] (Applegarth J), citing the Full Court of the Federal Court in Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Limited (1988) 20 FCR 540, 543.
In a case where there has been a failure to make full disclosure on an ex parte application for a search order the Court has a discretion whether or not to set aside the ex parte order. In exercising its discretion the Court should have regard to “all the circumstances of the case including the importance of the misstatements and non-disclosure…, the applicant’s culpability and the merits of its case otherwise”: Palaris Mining Pty Ltd v Short [2012] QSC 224, [19] (Applegarth J), quoting Gold Ribbon (Accountants) Pty Ltd (in liq) v Sheers [2003] 1 Qd R 683, [54] (Holmes J).
[261B] Requirements for grant of search order go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[261C] Jurisdiction go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[261D] Terms of search order go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[261E] Independent solicitors go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[261F] Costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 4 - Miscellaneous
[262] Part 2 order without trial go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[263] Expedited trial go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[264] Damages and undertaking as to damages go to top
The usual undertaking as to damages is a well-established incident of the power of the court to restrain a person from dealing with property in circumstances where the applicant needs to move promptly to prevent potential irreparable loss: State of Queensland v Rodd [2004] QSC 312, [10] (Atkinson J), citing Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249, 260 (Aickin J).
There are two principal reasons for the offering of the undertaking being a usual requirement for obtaining an interlocutory injunction. First, it mitigates the risk of injustice to the person restrained. Second, it enables the court to make an order summarily without determining all the factual matters in dispute between the parties: State of Queensland v Rodd [2004] QSC 312, [9] (Atkinson J), citing F Hoffmann – La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 361 (Lord Diplock).
Ordinarily, the risk of injury to a party restrained by an interlocutory injunction is met by an applicant’s undertaking as to damages. The giving of an undertaking as to damages is usually “an essential condition” to the making of an interlocutory injunction: Mid Brisbane River Irrigators Inc v Treasurer and Minister for Trade (Qld) (No 2) [2014] QSC 197, [23] (Jackson J), citing National Australia Bank Ltd v Bond Brewing Holding Ltd (1990) 169 CLR 271.
In assessing whether a proposed undertaking satisfies the requirements of r 264, an undertaking of a limited nature will be sufficient where the circumstances are such that the risk of loss likely to be caused by a freezing order is substantially or completely reduced: RG Munro Futures Pty Ltd (in liq) v Starport Futures Trading Corp [2008] QSC 337, [20] – [21] (Martin J).
[265] Other undertakings and security to perform undertaking go to top
The effect of r 265 is that the UCPR does not require security to be given, as a matter of course: Heartwood Architectural Timber & Joinery Pty Ltd v Redchip Lawyers [2009] 2 Qd R 449; [2009] QSC 195, [39] (Applegarth J).
Division 1 – Application
[266] Application of pt 3 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 2 – Receivership generally
[267] Consent to act as receiver go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[268] Security go to top
Where the court has appointed receivers under s 246 of Supreme Court Act 1995 (Qld), it should not dispense with the requirement that security be provided merely because the appointed receivers were official liquidators under the Corporations Act 2001 (Cth) or a firm of experienced accountants: Re Red Wagyu Australia Pty Ltd [2003] 1 Qd R 445, [14]-[17] (Fryberg J), distinguishing McIntyre v Perkes (1987) 15 NSWLR 417.
[269] Remuneration go to top
The appropriate approach to a receiver’s remuneration
Rule 269(2) provides that the court may order that a receiver be remunerated under a scale the court specifies in the order. Courts have discontinued the practice of referring to a scale of rates set by the Insolvency Practitioners Association of Australia. This body no longer recommends any scale of costs. Consequently, the courts must now consider the basis on which the charges are made and if that basis is reasonable: Golden Star Resources Ltd v Keryn Beatrice Rosel [2010] QSC 28, [23] (White J).
A court may be more likely to find that the basis of charging is reasonable if it can be shown that the process of charging is transparent and is rationally based on market rates: Golden Star Resources Ltd v Keryn Beatrice Rosel [2010] QSC 28, [23] (White J).
The following principles can be applied in considering whether remuneration claimed by a receiver is reasonable:
- The court constituted by a judge never considers a review of quantum, but only matters of principle.
- A receiver is entitled to have his costs, charges and expenses properly incurred in the discharge of his ordinary duties or in the performance of extraordinary services that have been sanctioned by the court.
- The receiver must justify the reasonableness and prudence of the tasks undertaken for which remuneration is sought. The relevant onus is on the receiver.
- A receiver’s remuneration is not in the same category [as] costs. The receiver is making application for a fair recompense for what he or she has actually done.
- The court’s objective is to award a sum or devise a formula which will reasonably compensate the receiver for the time and trouble expended in the execution of his duties and, to some extent the responsibility he has assumed.
- The court will usually work off time sheets created in the receiver’s office provided they do significantly more than merely detail the total number of hours spent by the receiver and officers of particular grades on his or her staff.
- The court is guided by a professional scale of charges, with emphasis on the broad average or general rate charged by persons of the relevant status and qualifications who carry out relevant work.
Golden Star Resources Ltd v Keryn Beatrice Rosel [2010] QSC 28, [25] (White J), citing the principles formulated by Young CJ in Ide v Ide (2004) 50 ACSR 324; [2004] NSWSC 751, [24] which were also endorsed by Barrett J in Mohamed v Hurstville Tower Medical Clinic Pty Ltd (in liq) [2006] NSWSC 4, [8].
Accountants appointed
Where accountants are appointed by the court to conduct investigations or to supervise the winding up of an unregistered managed investment scheme, they are entitled to the same protection of their rights to recover fees earned and expenses incurred in the performance of those roles as the Court gives to a court-appointed receiver. This is on the basis that the roles of court-appointed investigative accountants and supervising accountants are analogous, in the circumstances, to the role of court-appointed receivers: Australian Securities and Investments Commission v Atlantic 3-Financial (Aust) Pty Ltd [2004] 1 Qd R 591; [2003] QSC 386, [31] (Mullins J).
In Australian Securities and Investments Commission v Atlantic 3-Financial (Aust) Pty Ltd [2004] 1 Qd R 591; [2003] QSC 386, it was held that, as receivers, the accountants in that case were entitled to an equitable lien over the assets that came within their purview as investigators and supervisors, and that they were entitled to seek an injunction in support of their rights conferred by the lien: [32] –[35] (Mullins J).
[270] Accounts go to top
Rule 270 places the onus upon a receiver to persuade the court to dispense with the need for ordering that accounts be provided: Golden Star Resources Ltd v Keryn Beatrice Rosel [2010] QSC 28, [24] (White J).
A holistic approach should be taken when determining the need for ordering accounts. The court will usually work off timesheets created in the receiver’s office provided that those timesheets do significantly more than merely detail the total number of hours spent by the receiver and officers of particular grades on his or her staff: Golden Star Resources Ltd v Keryn Beatrice Rosel [2010] QSC 28, [24] (White J), citing with approval Young CJ in Ide v Ide (2004) 50 ACSR 324; [2004] NSWSC 751.
[271] Default go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[272] Powers go to top
A receiver appointed by the court under r 272 has only the rights, powers and duties conferred by the court order appointing them: Costello & Condi [2012] FamCA 355 [159], [161] (O’Reilly J).
It does not appear that a court is prevented from exercising its long-held equitable jurisdiction to appoint a receiver by s 246 of the Supreme Court Act 1995 (Qld) and r 272 merely because the application is not made by each and every person claiming an entitlement to a charge over an asset: Burnitt Investments Pty Ltd v GSS Power Generation Pty Ltd [2003] QSC 175, [9] (McMurdo J).
[273] Death of receiver go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 3 – Enforcement of judgment by appointment of receiver
[274] Enforcement of judgment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[275] Definition for pt 4 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[276] Application of pt 4 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[277] Order for sale go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[278] Conduct of sale go to top
A court may appoint a person to have conduct of sale without also making directions about the conduct of the sale in view of the relevant experience and competence of the person appointed: [2002] Q Conv R 54 [2001] QSC 390, [18] (Mullins J).
[279] Certificate of result of sale go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.