01 February 2018
Freezing order - Application to third party
Hi Mentor,
Would a freezing order made against a property affect a third party lender with mortgage over the property? Would it be necessary for the third party lender to seek a variation of the freezing order to realise the security? The third party lender is not named in the freezing order made against the borrower/mortgagor.
What is the authority on point?
Thanks in advance.
A freezing order would not be made against a bona fide mortgagee. Orders are made against third parties only if they hold property on behalf of the judgment debtor, or prospective judgment debtor. No doubt this is the reason the order was not made against the mortgagee. The mortgagee is not bound by the order.
If the order affects all property of the judgment debtor, it probably extends to any surplus received by the mortgagee on the sale.
The leading authority on freezing orders and third parties is Cardile v LED Builders Pty Limited [1999] HCA 18.
Regards
Mentor
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