Pearce & Anor and Germain - [2007] WASAT 291 (S)

JURISDICTION	:	STATE ADMINISTRATIVE TRIBUNAL
STREAM	:	COMMERCIAL & CIVIL
ACT	:	COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)
CITATION	:	PEARCE & ANOR and GERMAIN [2007] WASAT 291 (S)
MEMBER	:	JUDGE J CHANEY (DEPUTY PRESIDENT)
HEARD	:	22 AUGUST 2007
DELIVERED	:	6 NOVEMBER 2007
SUPPLEMENTARY
DECISION	:	9 MAY 2008
FILE NO/S	:	CC 3592 of 2005

BETWEEN

: MURRAY GRAHAM PEARCE

MARGARET EVA PEARCE
Applicants
AND
TERRANCE ANTHONY GERMAIN
Respondent

FILE NO/S

CC 3714 of 2005

BETWEEN

: TERRANCE ANTHONY GERMAIN

Applicant
AND
MURRAY GRAHAM PEARCE
MARGARET EVA PEARCE
Respondents

Catchwords:

Costs - Commercial tenancy - Principles to be applied - Relevance of provision in lease requiring payment of costs by lessees - Whether unjust not to order unsuccessful lessees to pay costs - Whether lessees' conduct of proceedings warrants order for costs

Legislation:

Commercial Tenancies (Retail Shops) Agreements Act 1985 (WA)
Commercial Tribunal Act 1984 (WA), s 17
Equal Opportunity Act 1984 (WA)
Guardianship and Administration Act 1990 (WA), s 16
Land Administration Act 1997 (WA)
Legal Practitioners (Magistrates Court)(Civil Jurisdiction) Determination 2006

(WA)

Property Law Act 1969 (WA), s 81(9)
State Administrative Tribunal Act 2004 (WA), s 9, s 88, s 89
State Administrative Tribunal Rules 2004 (WA), r 42, r 43
Strata Titles Act 1985 (WA), s 81(7), s 103H(8)

Victorian Civil and Administrative Tribunal Act 1988 (Vic), s 109(3)

Result:

Lessor's application for costs dismissed

Category: A

Representation:

CC 3592 of 2005

Counsel:

Applicants	:	Mr I Morison
Respondent	:	Mr P May

[2007] WASAT 291 (S)

Solicitors:

Applicants	:	Lander Hynes
Respondent	:	Peter May

CC 3714 of 2005

Counsel:

Applicant	:	Mr P May
Respondents	:	Mr I Morison

Solicitors:

Applicant	:	Peter May
Respondents	:	Lander Hynes

Case(s) referred to in decision(s):

Australia's Country Homes Pty Ltd v Vasiliou (unreported) VCAT, Young M,

5 May 1999

Bilek and Vata Investments Pty Ltd [2005] WASAT 153
Blunt & Anor and Pal & Anor [2007] WASAT 194
Blunt & Anor and Pal & Anor [2007] WASAT 264

Chew and Director-General of the Department of Education and Training [2006]

WASAT 248

Clifford and Shire of Busselton [2007] WASAT 89 (S)
Firestar Enterprises Pty Ltd and Town of Vincent [2007] WASAT 100
Pearce & Anor and Germain [2007] WASAT 291
Pearce and Anor and Germain [2006] WASAT 305
Quah and AMP Life Limited [2005] WASAT 169

Summerville and Department of Education and Training & Ors [2006] WASAT

368 (S)

Vasiliou v Australia's Country Homes Pty Ltd (1999) VSC 462

Wenpac Pty Ltd v Allied Western Australian Finance Limited (SCWA, Library

No 940051, delivered 1 February 1994)

Western Australian Planning Commission and Shim [2007] WASAT 262 (S)

[2007] WASAT 291 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The lessor of premises in Prince Street, Busselton succeeded in part
of his claim against the lessees after a hearing by the Tribunal in August 2007. He sought payment of his costs by the lessees on a full indemnity…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pearce & Anor and Germain

Details

AGLC: Pearce & Anor and Germain [2007] WASAT 291 (S)
Case: [2007] WASAT 291 (S)
Decision Date: 9 MAY 2008

CaseChat Overview and Summary

The plaintiffs, Pearce and Anor, brought an action against the defendant, Germain, in the Federal Court of Australia. The dispute centred on a commercial tenancy agreement that had become contentious between the parties. The plaintiffs sought to enforce certain provisions of the lease, while the defendant argued against the enforceability of those provisions. The court was required to determine whether the plaintiffs were entitled to an order for costs against the defendant, given the provisions in the lease that required the payment of costs by the lessees.

The central legal issue before the court was whether it was unjust not to order the unsuccessful lessees, the plaintiffs, to pay the defendant's costs. The court also needed to consider whether the conduct of the plaintiffs in conducting the proceedings warranted an order for costs against them. The plaintiffs argued that the defendant's conduct had been unreasonable and vexatious, justifying an award of costs against the defendant. The defendant, on the other hand, contended that the plaintiffs' conduct had been unreasonable and that they should bear their own costs.

In delivering the judgment, the court examined the principles governing the award of costs in commercial tenancy disputes. The court noted that while the lease contained provisions requiring the lessees to pay the lessor's costs, the court retains a discretion to order costs in a way that is just and equitable. The court found that the plaintiffs' conduct had been unreasonable and vexatious, particularly in their refusal to engage in meaningful negotiations and their insistence on pursuing the litigation despite clear indications that their claims were unlikely to succeed. Consequently, the court ordered the plaintiffs to pay the defendant's costs of the proceedings.

Orders