Kearney v Tamworth Poly Tanks Pty Ltd (No 3)

Kearney and Tamworth Poly Tanks Pty Ltd were involved in a legal dispute which was heard by the Supreme Court of New South Wales. The case focused on the possession of a structure that the tenant, Kearney, claimed was not a fixture and thus removable, while the landlord, Tamworth Poly Tanks Pty Ltd, argued that the structure was a fixture and should remain on the property. This case was a continuation of earlier litigation between the parties, which had resulted in adverse credit findings against Kearney. The current case involved a motion for recusal by Kearney, alleging that the judge had a reasonable apprehension of bias due to the previous unfavourable findings against Kearney.

The primary legal issue before the court was whether the judge should be recused from hearing the case due to the alleged bias arising from earlier credit findings. The court also needed to determine whether the structure in question was a fixture, which would impact the rights of the tenant to remove it. A secondary issue was whether the previous adverse credit findings were relevant to the current dispute and whether they could be considered in the motion for recusal.

In addressing the issue of recusal, the court considered the circumstances under which a judge might be considered biased. The court noted that a judge should be recused if there was a real likelihood that the judge might not bring an impartial mind to the resolution of the issue. However, the court found that the earlier adverse credit findings did not give rise to a reasonable apprehension of bias. The court reasoned that the previous findings were related to Kearney's creditworthiness and not the current dispute about the structure. Furthermore, the court held that the reasonable apprehension of bias must be based on facts existing at the time the motion was made, and the earlier findings did not satisfy this criterion. The court also addressed the issue of the structure, finding that it was indeed a fixture, and thus the tenant did not have the right to remove it.

The court dismissed the motion for recusal and found that the earlier adverse credit findings were not relevant to the current dispute. The court upheld the finding that the structure in question was a fixture, meaning that the tenant did not have the right to remove it from the property. The court's decision was based on the principles of impartiality and relevance of past findings to the current dispute. The final orders of the court were that the motion for recusal was dismissed and that the tenant was not entitled to remove the structure from the property.