A Mareva injunction is used to freeze assets in circumstances where there is a risk that an order of the court might be otherwise frustrated by the disposal of those assets. For example, a party who has been successful in obtaining an order for damages from a court might make an application for such an injunction to prevent the disposal of assets by the unsuccessful party.

In a recent application in the Supreme Court of Queensland, the parents of a daughter whom they believed to have been sexually assaulted by a neighbour (‘the accused’) sought to have an injunction placed over the accused’s sole major asset, his house.

However, the house was owned as tenants in common by the accused and his wife. The accused and his wife separated as a result of these and other allegations made against him.

The parents, in their own right and on behalf of their daughter (the claimants), had issued Notices of Claim against the accused, claiming damages arising from psychiatric injury caused to each of them. No court proceedings were on foot and no medical evidence was yet available to support the allegations of psychiatric injury to them.

In the resulting judgment (PJM & Ors v AML & Anor [2018] QSC 187), Justice Davis noted various deficiencies in the evidence put before the court in the supporting affidavit material. His Honour found that the actual allegations of sexual assault on the daughter by the accused were vague and, in some instances, involved statements of what others had been told and further involved statements of what the parents’ solicitor had been told. This resulted in double hearsay evidence and was thus non-admissible.

Similarly, the affidavit evidence before the court regarding the injuries suffered by the parents simply comprised their own assertions. There was no medical expert evidence put forward to support any psychiatric injury having been suffered by them.

His Honour found the final deficiency in the affidavit evidence was the global assertion by the parents’ solicitor that their damages would exceed $250,000. There was no admissible evidence before the court to support the assertion.

His Honour determined there was no evidence at all put before the court to prove any risk that the assets of the accused would be unreasonably disposed of.

As a result, Justice Davis declined to make the orders sought by the applicant’s parents and requested written submissions on the issue of costs.

So this matter came before the court again on the issue of costs in PJM & Ors v AML & Anor (No 2) [2018] QSC 204.

In written submissions regarding costs, the accused sought indemnity costs and raised the question of whether those costs ought to be ordered against the parents’ solicitors, personally. Justice Davis had his Associate email the parents’ solicitors advising that any further submissions on that issue ought to be made by a certain date.

Most telling were His Honour’s the reasons why such an order was being considered. Those reasons included that much of the evidence in the parents’ solicitor’s affidavit was in an inadmissible form, it contained multiple typographical, grammatical and substantive errors, suggesting a lack of care in its preparation and the application failed through a lack of proof of the basic elements of the relief sought.

His Honour made the orders sought by the accused and his wife as follows:

  1. The applicant’s solicitors, Shine Lawyers, forthwith pay the first respondent’s costs of the application on the indemnity basis, fixed at $37,255.57.
  2. The applicant’s solicitors, Shine Lawyers, pay the second respondent’s costs of the application to be assessed on the indemnity basis, or as agreed, save those costs ordered to be paid on 27 June 2018.

His Honour also noted that it was unnecessary to state “costs of and incidental to the application” as the definition of “costs of the proceeding” in Chapter 17A of the Uniform Civil Procedure Rules 1999 (Qld) is:

costs of the proceeding mean costs of all issues in the proceeding and includes –

  • costs ordered to be costs of the proceeding; and
  • costs of complying with the necessary steps before starting the proceeding; and
  • costs incurred before or after the start of the proceeding for successful or unsuccessful negotiations for settlement of the dispute.”

Clearly, this application was made prematurely and without sufficient evidence to satisfy the court to make the orders sought. In any case, Affidavit material must be carefully considered to ensure that not only all of the evidence required is put before the court but that it is in a form and of a nature which will be considered by the court to be “admissible evidence”.

If the solicitors in the application fail to do so, the court may take a harsh view of the conduct of the solicitors involved, raising the real risk of an indemnity costs order against the solicitors themselves.