Inspection, detention and preservation of property

Question 1

Which rule relates to the inspection, detention, and preservation of property?

Answer 1

Rule 250

Question 2

What is property?

Answer 2

Property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.

Acts Interpretation Act 1954, Schedule 1
See also Rule 250 UCPR

Question 3

When can a court make an order for the inspection, detention or preservation of property?

Answer 3

If:

1. the property is the subject of the proceeding or about a question that may arise; OR
2. The inspection of property is necessary for deciding an issue in the proceeding.

Rule 250 (1)

Question 4

If the inspection of property is necessary for deciding an issue in the proceeding.

This could include property that may only be of evidentiary value.

Name the case.

Answer 4

Wilsons Ceramics

Question 5

When considering an order, necessity is only relevant if the inspection of property is necessary for deciding an issue in the proceeding.

Name the case

Answer 5

Wilsons Ceramics

Question 6

What can an order of the a court authorise a person to do in relation to the inspection, detention and preservation of property?

Answer 6

a. enter place or do a thing to get access
b. take samples
c. make observations and take photos
d. conduct experiments on/within the property
e. observe a process
f. observe/ read images or information contained in the property (e.g. playing tape, film, disc)
g. photograph or copy information contained in the property.

Rule 250 (3)

Question 7

Can the court make an order about costs payable for the inspection, detention or preservation of property?

Answer 7

Yes

Rule 250 (4)

Question 8

Name the three main cases that deal with the inspection, detention, and preservation of property.

Answer 8

Evans Deakin Pty Ltd v Orekinetics Pty Ltd & Ors

Wilsons Ceramics Pty Ltd v Panaenius Australia Pty Ltd

GE Automotive Financial Services Pty Ltd v Laverty

Question 9

What is the rule in the case of Evans Deakin Pty Ltd v Orekinetics Pty Ltd & Ors?

Answer 9

…a Plaintiff should be allowed inspection if the court is satisfied that there really is a substantial and genuine issue to be tried, OR if ther formidable grounds for syaing that infringement might well be taking place, then an order for inspection might be appropriate.

Inspection ordered.

Question 10

What is the rule in the case of Wilson Ceramics Pty Ltd v Panaenius Australia Pty Ltd?

Answer 10

Property covered by 250 (1)(b) has the additional requirement that inspection be necessary.

The discretion is wide. The order should not be made unless, on the materials before the court it is proper to do so. Whilst necessity is not a pre-requisite, it is a relevant factor.

Purpose to promote efficient and economical conduct of litigation.

HH refused to order the inspection.

Question 11

What is the rule in GE Automotive Financial Services Pty Ltd v Laverty?

Answer 11

Re: collection of motor vehicle subject of proceeding.

It is reasonable enough for an order to be made under Rule 250 in circumstances to ensure the safety and preservation of the vehicle and pending the determination of the action.

Limits to listed properties not any property.

Order made. Allowed to enter listed properties to recover.