Inspection, Detention and Preservation of Property – O37

Question 1

What can the court order re inspection of a non-party’s property?

Answer 1

• Court may order authorisation for any person to (r37.01):
  o Enter any land to do any other thing for the purpose of obtaining access to the property;
  o Take samples of the property;
  o Make observations (including the photographing) of the property;
  o Conduct any experiment on or with the property;
  o Observe any process.

Question 2

What can the court order re inspection of a prospective defendant’s property?

Answer 2

• Applies to any property which is not a document.
• Court may make an order for the inspection, detention, custody or preservation of the property where:
  o There is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from an identified person;
  o After making all reasonable enquiries, applicant does not have sufficient information to enable applicant to decide whether to commence proceeding;
  o There is reasonable cause to believe that person has property in their possession which would assist the making of that decision.

Question 3

What is the test for the court when considering an application to preserve, detain or keep custody of a prospective defendant’s property?

Answer 3

• Test: Court must be satisfied that the applicant has made all reasonable enquiries and does not have sufficient information to enable it to decide whether to commence a proceeding to obtain relevant relief.

Question 4

How is an application made to preserve a prospective defendant’s property?

Answer 4

• Made by originating motion to which the person against whom the order is sought shall be made.
• Must be supported by affidavit which states the facts on which application is made and specifying or describing the property in respect of which the order is sought (r37.02).

Question 5

inspection or preservation of a perishable property

Answer 5

• Where proceeding concerns any property or in which question may arise as to any property, if the property is of a perishable nature or is likely to deteriorate or diminish in value if kept, court may make an order for the sale or other disposal of the whole or any part of the property (r37.04)

Question 6

What is preserving property?

Answer 6

Lien - Where plaintiff claims recovery specific property (other than land) and defendant does not dispute title, but claims to be entitled by virtue of lien, Court may order that plf be at liberty to pay into court the amount of money in respect of which the security is claimed and such further amount for interests/costs, ad upon making payment, property claimed should be given to plaintiff (r37.05)

Question 7

How is an application made under O37 SCR?

Answer 7

An application for an order shall be
- made by summons on all affected persons; and
- Supported by affidavit stating facts on which application is made and specifying or describing the property which order is sought. R37.03