Kearney v Tamworth Poly Tanks Pty Ltd (No 2)

Catchwords: COSTS – where successful plaintiff seeks indemnity costs – where defendant seeks separate orders in respect of the claim and cross-claim on ordinary basis – no just basis for departure from the usual order
CIVIL PROCEDURE – where orders permit immediate issue of a writ of possession – proposed removal of “linking shed” – whether matter justiciable

Legislation Cited: Civil Procedure Act 2005 (NSW)

Cases Cited: Bostik Australia Pty Ltd V Liddiard (No 2) [2009] NSWCA 304
Kearney v Tamworth Poly Tanks Pty Ltd [2025] NSWSC 729

Category: Costs

Parties: Jill Kearney (Plaintiff/Cross-Defendant)
Tamworth Poly Tanks Pty Ltd (First Defendant)
SKM Agriculture Pty Ltd (Second Defendant)
Simon Peter Kearney (Third Defendant/Cross-Claimant)

Representation: Counsel:
M Maconachie (Plaintiff/Cross-Defendant)
J Mack and L Hamilton (Defendant/Cross-Claimant)
Solicitors:
Benjafield & Associates Lawyers (Plaintiff/Cross-Defendant)
Harris Solicitors (First, Second and Third Defendants)

File Number(s): 2023/422452

JUDGMENT

1. On 9 July 2025 I gave judgment for Ms Kearney in these possession proceedings: Kearney v Tamworth Poly Tanks Pty Ltd [2025] NSWSC 729. The parties later agreed on the final orders in terms specified in Ms Kearney’s 1 August submissions.

2. In issue remained costs and a claim in relation to a structure on the disputed property referred to as the linking shed.

Costs

3. Ms Kearney sought an indemnity costs order which the defendants resisted. They contending that there should be no departure from the usual order, that costs follow the event.

4. There is no issue about the applicable principles. The Court having a wide discretion under the Civil Procedure Act 2005 (NSW) to depart from the usual order under the Uniform Civil Procedure Rules 2005 (NSW) that costs follow the evet: s98. And it being well recognised that there may be circumstances in which a successful party may be deprived of their costs, or a portion of them and where there is a mixed outcome, the exercise of the Court’s discretion depending on matters of impression and evaluation: Bostik Australia Pty Ltd V Liddiard (No 2) [2009] NSWCA 304 at [38].

5. Ms Kearney contended that she ought o have an indemnity costs order, having been successful in establishing her case and resisting the cross claim, albeit finally pressing considerably fewer damages than she had claimed at the outset, with the considerable bulk of what she had finally pressed being awarded by the Court. That having been the result of its determination of the intricately bound up factual and legal issues which the parties had litigated.

6. The defendants contended that in all the circumstances there would be no departure from the usual order, but that separate orders would be made in respect of the statement of claim and cross-claim. What advantage that might achieve was not explained.

7. I cannot see that anything practical would be achieved by such a separation. Nor can I see that there is any just basis for a departure from the usual order.

8. While Ms Kearney succeeded in obtaining possession, achieving a money order and resisting the cross claim, what she finally pressed was considerably less than what she pursued when the hearing commenced, as I explained in the July judgment. That was the result of rational decisions which Ms Kearney made during the course of the hearing, but does not provide a proper basis for a departure from the usual order.

9. I was also critical of and did not accept the defence case, including as to the cross claim. But the defendants did succeed in advancing a case which Ms Kearney partially accepted, given what she finally pressed and I ordered.

10. The defendants did not rely on this to claim that there had been any misconduct in the proceedings on Ms Kearney’s part, or to suggest that as a result, she should be deprived of any part of her costs.

11. In all of these circumstances, I am not persuaded that there is any just basis in this case for a departure from the usual order.

The linking shed

12. The orders the parties agreed permit the immediate issue of a writ of possession.

13. In the defendants’ written submissions of 30 July 2025 reference is made to “an issue relating to a linking shed”, which it was suggested might be resolved by agreement or otherwise and was not justiciable. Reference was also made to the concept of a tenant’s fixture and in Ms Kearney’s submissions, to whether the defendants now had any right to remove the shed, given what had already transpired in the proceedings. She also submitted that:

“14. Absent the third defendant making an appropriate undertaking to the Court, then in addition to the 6 agreed orders, and the plaintiff’s proposed costs order, the Court should make the following orders (or orders to the same effect):

8. The third defendant is restrained, himself, or by any employee, agent or assign, from removing, or in any way dealing (or purporting to deal) with, the structure referred to in paragraph 30(3) of the principal judgment as “a shed which connected the other two sheds already erected” at the property identified in order 1.

9. Leave for the third defendant to apply to vacate or vary order 8 by no later than 4:00pm on the date 7 days after the date of these orders.

15. The Court noted in its judgment that the plaintiff’s circumstances are, by reason of the active defendants’ conduct, dire J[304]. The parties have been given ample opportunity to be heard as to final orders. The orders contended for on behalf of the plaintiff ought be entered forthwith. Proposed order 9 provides the third defendant with opportunity to have the purported issue of the linking shed fully argued should he press it.”

14. I do not propose to make an order of the kind Ms Kearney proposed without hearing the parties, they not having directed their cases at the earlier hearing to the concept of a tenant’s fixture, or the restraint of any proposed removal of the shed, in the event that an order for possession of the property was made in favour of Ms Kearney.

15. Accordingly, I will direct the parties to confer and will list the matter at 9.30 am on 11 August 2025, giving them liberty to approach to vacate, in the event that they have reached an agreement.

Orders

16. For these reasons I order:

17. Judgment for the plaintiff for possession of the whole of the land comprised in Lot xxx in Deposited Plan xxx, being the land known as and situated at xxx Kingsford Smith Street, Tamworth, in the State of New South Wales.

18. Leave is granted to the plaintiff to issue a writ of possession forthwith, such writ not to be executed before the date 28 days after the date of these orders, 2 September 2025.

19. The first defendant is to pay the plaintiff the sum of $150,000.00 plus interest.

20. Interest on the first defendant’s judgment debt is to be calculated from 1 January 2016, at a rate of 12% per annum.

21. The third defendant is to pay the plaintiff the sum of $593,033.41 plus interest.

22. Interest on the third defendant’s judgment debt is to be calculated from 22 November 2023, pursuant to section 100 of the Civil Procedure Act 2005 and rule 6.12 of the Uniform Civil Procedure Rules 2005.

23. The matter is listed at 9.30 am on 11 August 2025, with liberty to approach to vacate.

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