Cokinos v Walker

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.