Aged and Disabled Persons Hostel and Welfare Association v Beenleigh Bowls and Recreation Club Inc

The Aged and Disabled Persons Hostel and Welfare Association (plaintiff) brought an action against Beenleigh Bowls and Recreation Club Inc (first defendant) and others (second to fifth defendants) seeking access to a coffee machine owned by the second defendant for destructive testing. The premises at 71 Hanover Street, Beenleigh, owned by the plaintiff, were damaged by fire on 2 June 2016. The plaintiff alleged that the fire originated in the coffee machine installed by the first defendant and owned by the second defendant. The plaintiff further alleged that the fire machine did not meet the requirement for fire resistance and that the defendants were liable for the damage caused. The court had to decide whether the order to conduct destructive testing on the coffee machine would promote the just and expeditious resolution of the real issues in the proceedings.

The court considered the legal principles in Evans Deakin Pty Ltd v Orekinetics Pty Ltd and Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd. The court observed that the discretion conferred by UCPR 250 was wide and should not be limited by the superimposition of conditions not found in the rule itself. The order should not be made unless, on the material before the court, it was proper to do so. The court found that the weight of the expert evidence was that the fault occurred in the electrical section of the coffee machine and the fire spread. However, the court found that the plaintiff had not shown sufficient grounds for intruding on the defendant's property. The court concluded that the order for destructive testing would not promote the just and expeditious resolution of the real issues in the proceedings. The court dismissed the application.

The court ordered that the application was dismissed, and any respondent wishing to make submissions on costs shall file and serve written submissions by 4:00 pm on 13 May 2022. The applicant shall file any submissions on costs in response by 4:00 pm on 27 May 2022. Each party has leave to file and serve by 4:00 pm on 10 June 2022 any application for leave to make oral submissions on costs. In the absence of any application to make oral submissions on costs being filed by 4:00 pm on 10 June 2022, the question of costs will be decided on any written submissions filed and without further oral hearing.