Australia, Sept. 6 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 5:

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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198774467ae1d66e70e4eae1)

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