Australia - Attachment of Assets
Originally from Attachment of Assets
1. What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained(‘attachments’)? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshall?
In Australia, if a plaintiff believes there is a real risk that a debtor will deal with assets so as to frustrate any future judgment in favour of the plaintiff, the plaintiff can apply to a court for a Mareva injunction. An application can also seek orders in support of the Mareva injunction (such as an order that the debtor give discovery of his or her assets) but otherwise the Mareva injunction remains the primary judicial measure available to a plaintiff in Australia to preserve a debtor’s assets pending judgment.
The advent of the Mareva injunction is relatively recent, having been granted by Australian courts since the early 1980s. That Australian courts have jurisdiction to grant Mareva injunctions was, in fact, only determined authoritatively by the High Court of Australia in 1987.
The Mareva injunction was an innovation of Lord Denning, Master of the Rolls of the English Court of Appeal, who first granted the injunction in the case of Nippon Yusen Kaisha v. Karageorgis and again four weeks later in the case from which the injunction takes its name, Mareva Compania Naviera SA v. International Bulkcarriers SA. Before the arrival of the Mareva injunction in England and Australia, a plaintiff could not obtain an injunction (or any other order) to restrain the debtor from trying to make him or herself judgment proof by disposing of assets before judgment. As Lawrence Collins has noted:
The creation of the Mareva jurisdiction was not so much a step forward as the rectification of an omission or error… The Mareva jurisdiction brought the English common law (and those jurisdictions which follow it) into line with the practice of civil law countries (the saisie-conservatoire and other remedies) and of the United States (the writ of attachment) and provided a remedy when one should always have been available.