Jadwan Pty Ltd v Rae & Partners (A Firm) [2017] FCA 443

Jadwan Pty Ltd v Rae & Partners (A Firm) [2017] FCA 443

The Court was satisfied that inspection of the Property was necessary and appropriate for trial preparation, that the Applicant's proposed undertaking was inadequate given the past history of late notice and unanswered correspondence, and that the tenants had been served, understood the application, did not object and would comply. Any procedural issue arising from service on non-parties was addressed by leave nunc pro tunc, or alternatively would be dispensed with. Orders permitting inspection and requiring facilitation were therefore made, with costs against the Applicant.

Jurisdiction
Australia
Judgment Date
28 April 2017
Procedural Posture
Professional Negligence and Breach of Contract Proceeding; Interlocutory Application for Inspection of Premises / Interlocutory Application Before Trial
Outcome
Fourth Respondent's interlocutory application granted; Applicant ordered to pay the Fourth Respondent's costs of and incidental to the application.
Legal Topics
['inspection of Property' 'interlocutory Orders' 'service on Non Parties' 'leave Nunc Pro Tunc' 'costs of Interlocutory Application']
['civil Procedure' 'evidence' 'professional Negligence' 'contract'] ['inspection of Property' 'interlocutory Orders' 'service on Non Parties' 'leave Nunc Pro Tunc' 'costs of Interlocutory Application']

Case Brief

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Procedural Posture

Professional Negligence and Breach of Contract Proceeding; Interlocutory Application for Inspection of Premises / Interlocutory Application Before Trial

Legal Issues

  1. 1 ['Whether the Fourth Respondent should be permitted by her legal representatives to inspect and photograph the buildings at 20 Fitzroy Place, Sandy Bay, formerly known as Derwent Court Nursing Home.' "Whether the Applicant's proposed undertaking to use best endeavours to secure access was sufficient instead of orders." 'Whether the interlocutory application was defective because the tenants were not named in the title to the proceedings, despite the application stating that it was intended to be served on them.']

Ratio Decidendi

The Court was satisfied that inspection of the Property was necessary and appropriate for trial preparation, that the Applicant's proposed undertaking was inadequate given the past history of late notice and unanswered correspondence, and that the tenants had been served, understood the application, did not object and would comply. Any procedural issue arising from service on non-parties was addressed by leave nunc pro tunc, or alternatively would be dispensed with. Orders permitting inspection and requiring facilitation were therefore made, with costs against the Applicant.

Court Disposition

Fourth Respondent's interlocutory application granted; Applicant ordered to pay the Fourth Respondent's costs of and incidental to the application.

Orders

  • ['Pursuant to r 14.01 of the Federal Court Rules 2011 (Cth), and/or s 196C Evidence Act 2001 (Tas) the Fourth Respondent, by her legal representatives, may inspect the buildings located at 20 Fitzroy Place, Sandy Bay in the State of Tasmania, formerly known as Derwent Court Nursing Home (the Property), including...