Kearney v Tamworth Poly Tanks Pty Ltd - [2025] NSWSC 729

Supreme Court

New South Wales

Medium Neutral Citation: Kearney v Tamworth Poly Tanks Pty Ltd [2025] NSWSC 729
Hearing dates: 5 - 6 February, 24 - 25 March 2025
Date of orders: 9 July 2025
Decision date: 09 July 2025
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
Judgment for Ms Kearney

Catchwords:
LEASES AND TENANCIES – possession of commercial property – where property leased by mother to son for many years – dispute over terms of undocumented lease and payment of rent – notices to quit served – declaratory relief in respect of lease sought – refused – order for possession made
LOANS – where money loaned by mother to son – dispute about interest and repayment of loans – payment of unpaid interest and repayment of loans ordered
PROCEEDS OF THE SALE OF LAND – son and his parents previously registered proprietors of a farming property – proceeds of sale split between parents – claim for share of proceeds pursued against mother – Pallant v Morgan equity – son not entitled to share of proceeds

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Evidence Act 1995 (NSW)
Family Law Act1975 (Cth)
Limitation Act1969 (NSW)
Real Property Act1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bosanac v Commissioner of Taxation [2022] HCA 34
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Carey v Carey [2020] NSWSC 765
Chan v Cresdon Pty Ltd (1989) 168 CLR 242; [1989] HCA 63
Chattock v Muller (1878) 8 Ch D 177
Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119
Commonwealth v Verwayen ("Voyager case") (1990) 170 CLR 394; [1990] HCA 39
Currie v Hamilton (1984) 1 NSWLR 687
Delaforce v Simpson-Cook [2010] NSWCA 84
Doueihi v Construction Technologies Australia Pty Ltd [2016] NSWCA 105
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15
Ferrier v Nationwide News Pty Ltd (No 3) [2015] NSWSC 1806
Galati v Deans & Ors [2023] NSWCA
Galaxidis v Galaxidis [2004] NSWCA 111
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Murtagh v Murtagh [2013] NSWSC 926
Neilson v Letch (No 2) [2006] NSWCA 254
Ogilvie v Adams [1981] VR 1041
Pallant v Morgan [1953] CH 43
Ryan v Dries (2002) 10 BPR 19,497; [2002] NSWCA 3
Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278; [2006] HCA 6
Walton’s Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
Watson v Foxman (1995) 49 NSWLR 315
White City Tennis Club Ltd v John Alexander's Clubs Pty Ltd & Anor [2009] NSWCA 114
Woodhouse v Woodhouse [2022] NSWCA 240

Texts Cited:
Peter Young, Clyde Croft and Megan Louise Smith, On Equity (2009, Thomson Reuters)

Category: Principal judgment
Parties: Jill Kearney (Plaintiff/Cross-Defendant)
Tamworth Poly Tanks…

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: [2025] NSWSC 729
Decision Date: 09 July 2025

CaseChat Overview and Summary

The dispute in Kearney v Tamworth Poly Tanks Pty Ltd involved a long-standing lease arrangement between a mother and her son over commercial property, as well as a loan made by the mother to her son. The son had leased property from his mother for many years, and the terms of the lease were undocumented. The dispute centred on the terms of the lease and the payment of rent. The mother served notices to quit, and the son sought declaratory relief in respect of the lease, which was refused. The court instead made an order for possession. Additionally, the dispute involved a loan made by the mother to her son. The son was ordered to pay the unpaid interest and repay the loans.

The legal issues in this case revolved around the terms of the undocumented lease, the payment of rent, and the interest and repayment of the loan. The court had to determine whether the son was entitled to declaratory relief in respect of the lease, and whether he was liable for the payment of rent, unpaid interest, and the repayment of the loan. The court also had to consider whether the son was entitled to a share of the proceeds from the sale of a farming property, which was jointly owned by the son and his parents.

In addressing these issues, the court found that the terms of the lease were not as claimed by the son and that he was liable for the payment of rent. The court also found that the son was liable for the payment of unpaid interest and the repayment of the loan. The court rejected the son's claim for a share of the proceeds from the sale of the farming property, finding that he was not entitled to any proceeds under the principles of Pallant v Morgan equity. The court ordered the son to pay the unpaid interest and repay the loans, and dismissed his claim for declaratory relief in respect of the lease. The court also ordered the son to vacate the commercial property leased from his mother.

Orders