P.T. Ltd v NB2 Pty Ltd [2017] NSWSC 309

P.T. Ltd v NB2 Pty Ltd [2017] NSWSC 309

The plaintiffs proved their contractual claim for arrears, post-termination rental loss and make-good costs, less the bank guarantee. The defendants failed to prove that the alleged first and second representations were made, and although the third written exclusivity representation was made and relied on, it objectively meant only that the tenant would be the sole independent specialty fruit and vegetable retailer in the Fresh Food Precinct. It did not prohibit a supermarket such as Franklins from selling fresh fruit and vegetables, and Franklins' post-renovation sales were not inconsistent with it. The defendants did not prove misleading or deceptive conduct, unconscionable conduct, or...

Jurisdiction
Australia
Judgment Date
31 March 2017
Procedural Posture
Equity Proceeding by Landlords for Rent and Lease Damages, With Defendants' Cross Claim Alleging Misleading or Deceptive Conduct, Unconscionable Conduct and Compensation Under the Retail Leases Act 1994 (nsw) / Principal Judgment After Hearing
Outcome
Plaintiffs to have judgment for $3,537,040.50 together with interest. Cross-claim dismissed. Costs reserved.
Legal Topics
['misleading or Deceptive Conduct' 'unconscionable Conduct' 'retail Shop Lease Compensation for Disturbance' 'lease Arrears and Loss of Rental' 'reliance on Representations' 'expert Opinion Evidence' 'leave to Amend Pleadings']
['trade Practices' 'retail Leases' 'evidence' 'contract Damages'] ['misleading or Deceptive Conduct' 'unconscionable Conduct' 'retail Shop Lease Compensation for Disturbance' 'lease Arrears and Loss of Rental' 'reliance on Representations' 'expert Opinion Evidence' 'leave to Amend Pleadings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceeding by Landlords for Rent and Lease Damages, With Defendants' Cross Claim Alleging Misleading or Deceptive Conduct, Unconscionable Conduct and Compensation Under the Retail Leases Act 1994 (nsw) / Principal Judgment After Hearing

Legal Issues

  1. 1 ['What rent, outgoings and other expenses were due but unpaid under the 2009 lease up to termination.' 'What loss of rental was suffered by the landlords by reason of termination of the lease.' "What damage was suffered by the landlords referable to the tenant's failure to remove improvements at termination." 'What representations were made by the landlords to the tenant before execution of the 2009 lease and whether they were correct, reasonably based, relied on, or misleading or deceptive.' "Whether the landlords knew of Franklins' intention to renovate its Miranda supermarket to sell fresh fruit and vegetables, and whether any later representation as to Franklins was made and relied on." "What the exclusivity representation in cl 17(b) of the letter of 27 October 2009 reasonably conveyed, and whether Franklins' sale of fresh fruit and vegetables was inconsistent with it." "Whether the landlords' conduct was misleading or deceptive or unconscionable under the Trade Practices Act 1974 (Cth) or the Retail Leases Act 1994 (NSW)." 'Whether redevelopment of the Centre inhibited or altered to a substantial extent the flow of customers to shop 2082 within s 34(1)(b) of the Retail Leases Act 1994 (NSW), whether written rectification was requested, and whether compensation was established.' 'Whether any damages or compensation payable to the tenant should be set off against amounts owing to the landlords.']

Ratio Decidendi

The plaintiffs proved their contractual claim for arrears, post-termination rental loss and make-good costs, less the bank guarantee. The defendants failed to prove that the alleged first and second representations were made, and although the third written exclusivity representation was made and relied on, it objectively meant only that the tenant would be the sole independent specialty fruit and vegetable retailer in the Fresh Food Precinct. It did not prohibit a supermarket such as Franklins from selling fresh fruit and vegetables, and Franklins' post-renovation sales were not inconsistent with it. The defendants did not prove misleading or deceptive conduct, unconscionable conduct, or...

Court Disposition

Plaintiffs to have judgment for $3,537,040.50 together with interest. Cross-claim dismissed. Costs reserved.

Orders

  • ['Direct the parties to agree on the form of orders to be made to give effect to these reasons.' 'Stand matter over to 10am on 7 April 2017 for the making of orders.' 'Reserve costs.']