Cokinos & Ors v Walker & Ors [2007] NSWSC 1040

Cokinos & Ors v Walker & Ors [2007] NSWSC 1040

A search order was justified because Mr Walker had been in entire control of the plaintiffs' Australian business assets, had retained some assets and initially indicated they would not be returned without payment, had resigned and immediately approached clients to transfer business to Zumu, and there was unrebutted evidence of further missing business assets including vital software systems. In those circumstances, the plaintiffs had a justifiable fear that, without a search and removal order, assets might be destroyed, concealed or removed, making the case one of the rare cases calling for extreme measures.

Jurisdiction
Australia
Judgment Date
06 September 2007
Procedural Posture
Application for a Search Order of Anton Piller Type Concerning Preservation of Property / Application Repeated on Notice After an Ex Parte Application Was Refused
Outcome
Search order made.
Legal Topics
['search Order' 'anton Piller Order' 'preservation of Property' 'discovery' 'destruction or Concealment of Evidence']
['procedure' 'equity'] ['search Order' 'anton Piller Order' 'preservation of Property' 'discovery' 'destruction or Concealment of Evidence']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Application for a Search Order of Anton Piller Type Concerning Preservation of Property / Application Repeated on Notice After an Ex Parte Application Was Refused

Legal Issues

  1. 1 ['Whether a search order of the Anton Piller type should be made where an ex parte application had previously been refused for lack of direct evidence of likely destruction, hiding or removal of items.' "Whether the circumstances went beyond a commercial dispute and justified extreme measures because the first defendant had been in entire control of the plaintiffs' Australian business assets and important software systems were missing." "Whether a risk of destruction, concealment or removal of evidentiary material could be inferred from the defendants' conduct."]

Ratio Decidendi

A search order was justified because Mr Walker had been in entire control of the plaintiffs' Australian business assets, had retained some assets and initially indicated they would not be returned without payment, had resigned and immediately approached clients to transfer business to Zumu, and there was unrebutted evidence of further missing business assets including vital software systems. In those circumstances, the plaintiffs had a justifiable fear that, without a search and removal order, assets might be destroyed, concealed or removed, making the case one of the rare cases calling for extreme measures.

Court Disposition

Search order made.

Orders

  • ['Search order made.' 'The matter was stood down to allow counsel to discuss the terms of the proposed order.']