Tomson & Tomson

In *Tomson & Tomson*, Kent J of the Supreme Court of Western Australia considered a dispute between two parties, Tomson and Tomson, concerning the interpretation of a clause within a commercial lease agreement. The core of the disagreement revolved around whether a specific event constituted a "force majeure" as defined in the lease, thereby excusing one party from their contractual obligations.

The primary legal issue before the Court was to determine the proper construction of the force majeure clause in the lease agreement. Specifically, the Court had to ascertain whether the circumstances that arose fell within the scope of events contemplated by the clause, and if so, what consequences flowed from such a determination under the terms of the lease.

Kent J's reasoning focused on the plain language of the force majeure clause and the established principles of contractual interpretation. The Court analysed the specific wording of the clause, considering the ordinary meaning of the words used and the context in which they appeared within the lease. His Honour applied the principle that such clauses are to be construed strictly and that the party seeking to rely on the clause bears the onus of demonstrating that the event in question clearly falls within its ambit. The Court considered whether the event was truly beyond the reasonable control of the party seeking to rely on the clause and whether all reasonable steps had been taken to mitigate its impact.