Kearney v Tamworth Poly Tanks Pty Ltd (No 3)

[2025] NSWSC 966

Supreme Court

New South Wales

Medium Neutral Citation:

Kearney v Tamworth Poly Tanks Pty Ltd (No 3) [2025] NSWSC 966

Hearing dates:

26 August 2025

Date of orders:

26 August 2025

Decision date:

26 August 2025

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1) The 1st and 3rd Defendants bear Ms Kearney’s costs up to and including when Kearney v Tamworth Poly Tanks Pty Ltd (No 2) [2025] NSWSC 862 was delivered on 5 August 2025, as agreed or assessed.

(2)   I recuse myself from this matter.

(3)   Ms Kearney has liberty to approach the Manager Listing for an urgent hearing of her motion before another member of the Common Law Division.

(4)   Costs of the motions are reserved.

Catchwords:

CIVIL PROCEDURE – possession – recusal – reasonable apprehension of bias – earlier unfavourable credit findings relevant to motion concerning further dispute about a structure claimed to be a fixture the tenant is not entitled to remove

Cases Cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

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

Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Category:

Consequential orders

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

Publication restriction:

Nil

Ex tempore JUDGMENT (Revised)

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 final orders other than as to costs which were finally agreed.

2. A dispute also arose about a structure on the property which the parties had referred to in the proceedings as “the linking shed”, which Ms Kearney understood Mr Kearney intended to remove, which she considered he had no right to do, because it was a fixture. A program was fixed to hear the motion Ms Kearney filed on 13 August, supported by an affidavit she had sworn to deal with that dispute. Mr Kearney also filed affidavits.

3. On 26 August Mr Kearney also filed a motion seeking that I recuse myself, given the adverse credit findings I had made against him, on which much of what had been dealt with in the July judgment turned.

4. Ms Kearney opposed that application, contending that it was relevant that what arose to be decided in respect of her motion did not turn on further credit issues, given what I had already decided. Further, that if the recusal application was to succeed, Mr Kearney should be restrained from removing the linking shed before her motion was heard.

5. Mr Kearney did not oppose this, undertaking in court to not to take down the linking shed before her motion was heard and determined.

6. As to the recusal, there was no issue about the applicable principles. The test for recusal for apprehended bias being whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues arising on the motion: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; [1983] HCA 17; Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[13]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31].

7. In Ebner it was explained at [8] that the application of the apprehended bias principle requires two steps. First, the identification of what is said might lead a judge to decide a case other than on its legal and factual merits. The second, an articulation of the logical connection between that matter, and the feared deviation from the course of deciding the case on its merits.

8. It was the adverse credit findings which I made about Mr Kearney in the July judgment on which he relied to advance the recusal application.

9. In Livesey, it was also explained at [18] that a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case, or about the credit of a witness whose evidence is of significance on such a question of fact.

10. I am satisfied that the same approach must be adopted in circumstances such as the present. Given what is now in issue, I am satisfied that these principles do require me to recuse myself, disputed evidence which I have already dealt with in the July judgment also being relevant to what is in issue in relation to the linking shed.

11. Mr Kearney also sought an order that Ms Kearney's motion be heard in the Equity Division's Expedition List. I will not make that order but am satisfied that Ms Kearney must have liberty to approach the Manager Listing for an urgent hearing of her motion before another member of the Common Law Division. I grant her that liberty, and for these reasons, recuse myself.

Orders

12. For these reasons I order that:

1. The first and third Defendants bear Ms Kearney’s costs up to and including when Kearney v Tamworth Poly Tanks Pty Ltd (No 2) [2025] NSWSC 862 was delivered on 5 August 2025, as agreed or assessed.

2. I recuse myself from this matter.

3. Ms Kearney has liberty to approach the Manager Listing for an urgent hearing of her motion before another member of the Common Law Division.

4. Costs of the motions are reserved.

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