McLeary v Swift

The case of McLeary v Swift involved a dispute concerning the availability of an interlocutory freezing order in equity. The plaintiff, McLeary, sought the order to prevent the defendant, Swift, from disposing of assets that were potentially subject to a claim in the main proceedings. Swift had transferred the property in question to a discretionary trust, of which Swift retained the power of appointment and was a contingent beneficiary. The matter was heard in the Federal Court of Australia.

The court was required to decide whether an interlocutory freezing order could be granted in the absence of property currently held by the defendant, and what form such an order should take. Additionally, the court needed to determine the appropriate circumstances under which an affidavit could be rejected where the witness was unavailable for cross-examination, despite the absence of timely notice to attend for cross-examination.

The court held that an interlocutory freezing order could be granted even if the defendant no longer held the property in question, provided that the defendant retained a power of appointment over the trust assets. The court considered that the order was necessary to preserve the status quo and protect the plaintiff's potential rights pending the determination of the main proceedings. In terms of the form of the order, the court found that it should be tailored to the specific circumstances of the case, taking into account the nature of the property and the rights of the parties involved. The court also found that an affidavit could be rejected if the witness was unavailable for cross-examination, even if there was no timely notice to attend for cross-examination, as the unavailability of the witness rendered the affidavit unreliable.

In conclusion, the court granted an interlocutory freezing order over the trust assets, subject to certain conditions, and rejected the affidavit of the witness due to their unavailability for cross-examination.