03 November 2026
7 min read
#Construction, Infrastructure & Projects
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Search orders are among the most powerful remedies available for preserving evidence pending the hearing and final determination of a proceeding. They allow a party to enter premises and secure evidence before it can be destroyed, concealed or altered.
A recent decision of the Supreme Court of New South Wales, Modern Caves Pty Ltd v Shafren [2026] NSWSC 827, provides a timely reminder of when courts will grant this extraordinary relief.
The case is particularly notable because it applies the remedy in a building dispute, illustrating how concerns arising from construction claims and project records can justify urgent measures to preserve evidence. Although the decision was made in New South Wales, the principles underpinning the remedy are also relevant in Queensland, where search orders are available under a closely comparable procedural framework.
In Modern Caves Pty Ltd v Shafren, Bennett J granted an ex parte search order against a construction director accused of systematically inflating billable hours under a residential building contract. The plaintiff alleged that the defendant regularly claimed between 17 and 19.5 hours of work per day while simultaneously exercising, participating in sporting activities and working on other projects.
The plaintiff sought access to physical and digital records that could establish the defendant’s movements and activities during the periods in question. The evidence included phones, laptops, cloud-based records, fitness tracking data, social media activity and records of overlapping work commitments and other project documents.
The evidence suggested that the hours claimed were highly implausible and that the defendant had made overlapping claims for work performed on different projects during the same period. There was also evidence that the defendant had restricted access to project documentation systems when questioned about the discrepancies and created false timesheets to support the accuracy of the claimed hours.
The Court was satisfied that:
As a result, the Court granted a search order authorising the preservation of both physical and electronic evidence. The decision demonstrates that courts remain willing to grant search orders where there is compelling evidence of serious dishonesty and a genuine risk that critical evidence may disappear before trial.
The threshold principles considered in Modern Caves are broadly consistent with the approach to search orders in Queensland. The decision therefore provides a useful illustration of when the remedy may be available in a building dispute, while Queensland’s rules and practice direction govern how an order made in Queensland is executed and supervised.
A common misconception is that a successful applicant immediately gains access to a respondent's documents and devices. In reality, Queensland's search order regime is governed by Rules 261A to 261F of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and is supplemented by Supreme Court Practice Direction No 2 of 2007. Together, these establish a detailed framework for the execution of search orders and the safeguards designed to protect both the integrity of the process and the respondent's rights.
Independent solicitors
In Queensland, the Court must appoint an independent solicitor under Rule 261E of the UCPR to supervise the enforcement of a search order. The mandatory appointment of an independent solicitor is not unique to Queensland, being a common safeguard implemented in search order regimes across Australia.
The independent solicitor plays a central role in the execution of the order, including serving the order, explaining its effect to the respondent, advising the respondent of their right to obtain legal advice, supervising the search, preparing inventories of seized material and reporting back to the Court.
Search party
The search party will typically include:
Importantly, the applicant and its employees, officers and other associates are ordinarily excluded from participating in the search itself. The number of persons attending are often kept to the minimum reasonably necessary to minimise the disruptive effect search orders.
Service and entry onto the premises
In most cases, the order is served during business hours so that the respondent has an opportunity to obtain legal advice.
Once the order is served, the respondent may be required to permit entry to specified premises, identify the location of relevant documents or devices and facilitate access to information covered by the order.
A search order does not authorise forcible entry into the premises, although the respondent’s refusal to comply may amount to contempt of court. This applies to search orders generally, rather than a safeguard unique to Queensland.
Conducting the search
The search is conducted under the supervision of the independent solicitor, who then must use their best endeavours to ensure the search party complies with the Court’s order and that the process is carried out courteously and with minimal disruption.
Where electronic evidence is involved, an independent forensic computer expert may make copies of the devices, preserve metadata and secure cloud-based records. Any forensic examination of computer systems is generally conducted by that independent expert, rather than by the applicant or the applicant's representatives.
Removal and custody of seized material
A further safeguard is that any material removed during the search is retained by the independent solicitor pending further order of the Court. Before items are removed, a detailed inventory must be prepared and provided to the parties.
The applicant is generally not permitted to inspect the seized material or receive information obtained during the search without the Court's permission. This restriction ensures that any disputed materials seized during the process remain protected pending further judicial review.
Reporting to the court
Following the search, the independent solicitor provides a report to the Court detailing how the order was carried out and identifying any issues that arose during the process. The Court then determines what should happen to the preserved material and whether any ongoing orders are required.
These safeguards reflect the purpose of search orders to preserve evidence so that the underlying dispute can later be determined fairly and not to provide an immediate forensic advantage to the applicant.
For parties to construction disputes, it is worthy to note the following when considering an application for a search order:
Modern Caves Pty Ltd v Shafren is a useful reminder that search orders remain one of the courts' most powerful tools for preserving evidence. The case also highlights the need for applicants to show clear evidence that the respondent possesses vital evidence and demonstrate a real risk that the respondent will destroy, alter or hide the evidence strong evidence significant evidentiary burden placed on an applicant to justify the need for the order and satisfy the court its use is confined to preserving critical evidence, rather than simply being used as an investigative tool.
If you have any questions or would like to discuss the options available to preserve evidence in construction disputes, please get in touch with us.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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