Pearce & Anor and Germain

The parties to the dispute were Mr and Mrs Pearce, who were the lessees of a commercial property at 22 Prince Street, Busselton, and Mr Germain, who was the lessor of the same property. The nature of the dispute was primarily about alleged breaches of the lease by both parties, including claims by the lessees for damages due to certain actions by the lessor, and claims by the lessor for payment due to breaches by the lessees. The dispute was heard by the Tribunal under the Commercial Tenancies (Retail Shops) Agreements Act 1985 (WA). The central legal issues the Tribunal had to decide were whether the lessor had breached the terms of the lease by carrying out works on the premises without the lessees' consent, whether the lessees were in breach for parting with possession, and whether the lessor was entitled to terminate the lease due to non-receipt of a rent cheque. Additionally, the Tribunal had to determine whether prior notice of re-entry was required and whether damages followed the termination.

The Tribunal found that the lessor was not in breach of the lease for carrying out works on the premises without the lessees' consent, as there was no evidence that the works interfered with the lessees' quiet enjoyment of the premises. The Tribunal also found that the lessees were in breach for parting with possession, as they had vacated the premises without a valid reason. Regarding the termination of the lease, the Tribunal found that the lessor was entitled to terminate the lease due to the non-receipt of a rent cheque, but this was not a breach of the lease. The Tribunal also found that the lessor was not required to provide prior notice of re-entry. The Tribunal considered the clause in the lease which required payment by the lessees of the lessor's costs and expenses resulting from a default under the lease. The Tribunal considered this clause to be a relevant factor in exercising its discretion in relation to costs. The Tribunal also found that the lessees' conduct in the proceedings did not provide a basis for an order for costs being made against the lessees.

In conclusion, the Tribunal dismissed the claims by the lessees in CC 3592 of 2005 and ordered that in CC 3714 of 2005, the respondents pay to the applicant the sum of $21,462.47 together with interest thereon at the rate of 2% more than the ANZ Banking Group Limited reference rate from time to time from 1 December 2005 to the date of payment. The Tribunal also granted liberty to apply in relation to costs.