Order 37 - Inspection, Detention and Preservation of Property Flashcards
37.01 Inspection, detention etc of property (enter, take, make, conduct, observe; costs/expenses; security)
(1) In any proceeding, court may make an order for the inspection, detention, custody or preservation of any property, whether or not in the possession, custody or power of a party.
(2) An order under this rule may authorise any person to:
● (a) Enter land for purpose of obtaining access to the property
● (b) Take samples of the property
● (c) Make observations (including photos) of the property
● (d) Conduct experiment on the property
● (e) Observe any process
(3) On application under (1), Court may make an order for costs and expenses of any person not being a party where—
● (a) that person attends on the hearing of the application pursuant to a summons served under Rule 37.03(1); or
● (b) Court makes an order under (1) which will affect that person.
(4) Court may make an order under this Rule on condition that party applying for order give security for the costs and expenses of any person, whether or not a party, who will be affected by the order.
37.02 Inspection from prospective defendant
(1) This Rule applies to any property not being a document.
(2) In this Rule “applicant” means applicant for order under the Rule.
(3)(a) where there’s reasonable cause to believe applicant has/may have right to obtain relief in the court from identified person
(b) after making all reasonable enquiries, applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief
(c) there is reasonable cause to believe that person has / is likely to have in their possession/custody/power any property relating to question of whether there is right to obtain relief, and inspection of property by applicant would assist applicant to make decision—
Court can make order for inspection/detention/custody or preservation of property.
(4) Order under (3) may authorise any person to do any of things referred to in r 37.01(2).
(5) On application under this Rule, Court may make an order for costs and expenses of—
(a) the applicant; and (b) person against whom the order is sought.
(6) Court may make order per this Rule on condition that applicant give security for costs/expenses of person ats. whom order made.
37.03 Procedure (for 37.01 - summons + affidavit in support - all parties to proc, personally on affected parties for 37.02 - OM + affidavit)
(1) Application for order under r 37.01 shall be made by summons—
(a) served on all parties to the proceeding; and (b) personally on each person who would be affected by the order if made.
(2) The Court may make an order under r 37.01 notwithstanding that any person not being a party who will be affected by the order has not been served with the summons personally or at all.
(3) An application under r 37.02 shall be made by OM to which person against whom order is sought shall be made respondent.
(4) Order shall not be made under r 37.02 except by Judge of Court.
(5) summons per (1) or OM per (3) shall be supported by affidavit—
(a) stating the facts on which application is made; and
(b) specifying/describing property in respect of which order’s sought.
(6) A copy of supporting affidavit shall be served on every person on whom the summons or OM is served.
37.04 Disposal of perishable property (can order if property is of perishable nature or is likely to deteriorate/diminish in value if kept)
Where, in proceeding concerning any property (other than land) or in a proceeding in which any question may arise as to any property (other than land), property is of perishable nature or is likely to deteriorate/diminish in value if kept, Court may make an order for the sale or other disposal of the whole or any part of the property.
37.05 payment into court in discharge of lien
(1) Where in any proceeding— (a) P claims the recovery of specific property (other than land); and (b) it appears from pleadings or otherwise that D does not dispute title of P but claims entitlement to retain property by virtue of lien or otherwise as security for any $sum
Court may order that P be at liberty to pay into court, to abide event of proceeding, amount in respect of which security is claimed and such further amount, if any, for interest/costs as Court may direct and that, upon making such payments, property be given up to P.
(2) This Rule, with any necessary modification, applies to a CC.
37.06 interim distribution of property or income
Where in proceeding concerning any property, property will be more than sufficient to answer claims on property for which provision ought to be made in the proceeding, the Court—
(a) may by order allow whole/part of annual income of property or any part thereof to be paid, during such period as Court may determine, to all or any of persons having an interest in income; or
(b) may direct that any part of the property be conveyed, transferred or delivered to any person having an interest in the property.
