Kearney v Tamworth Poly Tanks Pty Ltd (No 2)

The matter before the court involved a dispute between Kearney and Tamworth Poly Tanks Pty Ltd regarding a claim for indemnity costs and a cross-claim. Kearney sought indemnity costs from the defendant, while the defendant sought separate orders in respect of the claim and cross-claim on the ordinary basis. The court had to determine whether there was a just basis for departing from the usual order for indemnity costs and whether the proposed removal of a "linking shed" was a justiciable matter, as it would allow for the immediate issue of a writ of possession.

The court examined the principles surrounding indemnity costs and the circumstances in which a successful plaintiff may be entitled to such costs. It considered the defendant's argument for separate orders on the ordinary basis and whether this would be appropriate in the context of the case. Additionally, the court assessed whether the proposed removal of the "linking shed" was a matter that could be adjudicated upon, as it would allow for the immediate issue of a writ of possession.

The court found that there was no just basis for departing from the usual order for indemnity costs. It held that the defendant's request for separate orders on the ordinary basis was not supported by the circumstances of the case. The court also determined that the proposed removal of the "linking shed" was a justiciable matter, as it would permit the immediate issue of a writ of possession. The court concluded that the defendant's application for separate orders on the ordinary basis was not warranted and that the usual order for indemnity costs should apply.

The court ordered that the successful plaintiff, Kearney, was entitled to indemnity costs. It further ruled that the defendant's application for separate orders on the ordinary basis was dismissed, and the usual order for indemnity costs was to apply. The court also found that the proposed removal of the "linking shed" was a justiciable matter, allowing for the immediate issue of a writ of possession.