Cokinos v Walker - [2007] NSWSC 1040

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

HEARING DATE(S): 06/09/07

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 6 September 2007

DECISION: Search order made.

CATCHWORDS: PROCEDURE - Preservation of Property - Search order of Anton Piller type refused on ex parte application - Application repeated on notice - No submission by respondents with respect to missing computer software systems used in business and by head office in USA - Whether merely commercial dispute not warranting extreme measures - First defendant in entire control of assets of Australian business

CASES CITED: EFG Australia Ltd & Anor v Kennedy & Ors, unreported, NSWSC, Bryson J, 2 August 1995
Anton Piller KG v Manufacturing Processes Ltd & Ors [1976] 1 Ch 55
Long v Specifica Publications Pty Ltd (1998) 44 NSWLR 545
International Entertainment New Zealand Ltd (No 2) Ltd v Lewis (1998) 42 IPR 162
Yousif v Salama [1980] 1 WLR 1540
Spry, "Equitable Remedies", 6th ed

PARTIES: George Mark Cokinos - First Plaintiff
Nicholas Cokinos - Second Plaintiff
John Cokinos - Third Plaintiff
Mark Walker - First Defendant
Zen Dan Kwan Pty Ltd - Second Defendant
Zumu Pty Ltd - Third Defendant

FILE NUMBER(S): SC 4406/07

COUNSEL: Mr J Johnson - Plaintiffs
Mr G McGrath - Defendants

SOLICITORS: Maguire & McInerney Lawyers - Plaintiffs
Hansons Lawyers - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 6 SEPTEMBER 2007

4406/07 GEORGE MARK COKINOS & ORS v MARK WALKER & ORS

EX TEMPORE JUDGMENT

1 Yesterday I rejected an ex parte application for a search order of the type referred to in Practise Note SC Gen 13. There was no direct evidence of a likelihood of destruction, hiding or removal of the things to be searched for. The application is repeated today. I have now had the advantage of submissions on behalf of the defendants.

2 On 30 August 2007, the solicitors for Mark Walker, the first defendant, wrote to the solicitors for the plaintiffs in which it was acknowledged that Mr Walker held property of the plaintiffs being one computer, one network printer and assorted boxes of records and files. The letter stated:

"All other computers and printers and equipment in the office are the property of Mark Walker. Our client is more than happy to hand over the above property on payment to our firm of the monies owing by your client which are particularised in this letter."

3 Counsel for the defendants stated that he had instructions that the items would be delivered up without payment on a without admission basis.

4 Counsel for the defndants referred to EFG Australia Ltd & Anor v Kennedy & Ors, unreported, NSWSC, Bryson J, 2 August 1995. In an ex parte application for an order of the kind that is sought before me today, his Honour had this to say:

“I approach the application on the basis that the ordinary procedure of the court, whether for small matters or large matters…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 1040
Decision Date: 6 September 2007

CaseChat Overview and Summary

The case before the court was between Cokinos, the plaintiff, and Walker, the first defendant, with the second defendant being a company. The plaintiff sought a search order of an Anton Piller type, which would allow for the inspection and seizure of certain property on the defendant's premises, in relation to computer software systems allegedly used in the Australian business and by the head office in the USA. The plaintiff argued that these systems were missing and had been removed by the defendants, which constituted a breach of fiduciary duty. The case was initially heard on an ex parte basis, but the application was refused. The plaintiff subsequently repeated the application on notice, seeking the same relief. The first defendant, who was in entire control of the assets of the Australian business, did not submit any response regarding the missing computer software systems.

The legal issues before the court were whether the dispute was merely a commercial one that did not warrant the extreme measures of an Anton Piller order and whether the court should grant the order despite the absence of a submission from the respondents. The court had to consider the balance of convenience and the urgency of the matter, as well as the nature of the property sought to be inspected and seized. The court also had to consider whether the defendants had acted in a manner that warranted the use of such extreme measures.

The court found that the dispute was primarily a commercial one and did not warrant the use of an Anton Piller order. The court emphasised the need for a high threshold to be met before granting such an order, particularly when the dispute was commercial in nature. The court also noted that the first defendant was in entire control of the assets of the Australian business, which further undermined the need for such extreme measures. The court found that the absence of a submission from the respondents regarding the missing computer software systems did not warrant the granting of the order. The court ultimately refused to grant the Anton Piller order, finding that the balance of convenience did not favour the plaintiff.

No further orders were made by the court.

Orders