Justelle Nominees Pty Ltd v Martin [No 3]

The case of Justelle Nominees Pty Ltd v Martin [No 3] involved a dispute between a landlord and tenant over the termination of a lease, arrears of rent, damages, and a counterclaim for damages by the landlord for the tenant's alleged breach of repair covenant. The matter was heard in the Supreme Court of Western Australia. The central legal issues before the court were the extent of the landlord's obligation to repair, whether the lease was validly terminated by the service of the writ, and if there was a causal nexus between the non-payment of rent and the landlord's breach of repair covenant.

The court found that all of the damage caused by the termites constituted 'items of damage in respect of the leased premises which are not specifically the responsibility of the lessee'. Therefore, the landlord was required to repair this damage under clause 12.3 of the lease. However, the obligation under clause 12.3 only arose when the landlord became aware of the termite damage, which was some months prior to September 2005 in this case. The court also found that the tenant failed to clean gutters, service equipment, and maintain the premises in a clean condition, thereby breaching the full terms of clause 7.1 of the lease. Additionally, the court found that the landlord was responsible for certain repairs as per clauses 7.1, 11.1, and other terms of the lease.

The court held that the tenant was at least 14 days in arrears in payment of rent after 9 April 2005, allowing the landlord to re-enter the leased premises without notice or terminate the lease forthwith under clause 14.3.1. The court noted that the landlord was not required to serve a notice of default before exercising this right. However, the landlord had served an erroneous notice of default on 21 June 2006, which did not affect their right to terminate the lease. The court found that the landlord must rely on the service of the writ of summons on 17 August 2006 to bring the lease to an end, as per Rosa Investments Pty Ltd v Spencer Shier Pty Ltd [1965] VR 97.

The final orders of the court were that judgment was to be entered in favour of the landlord for arrears of rent, and in favour of the tenant for nominal damages.