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ARTICLE · 11 DECEMBER 2018

Commercial Leasing Case Update: NB2 Pty Ltd v P.T. Ltd [2018] NSWCA 10

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Retail lessees must ensure that any matters on which they rely in entering into a lease are effectively addressed in the lease.

AustraliaReal Estate and Construction
Ash Rihak
Ash Rihak
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On 14 February 2018, the New South Wales Court of Appeal handed down its decision in the case of NB2 Pty Ltd v P.T. Ltd [2018] NSWCA 10 (NB2 Case). This decision serves as a reminder of the importance for retail lessees of ensuring that any matters on which they rely in entering into a lease are clearly and effectively addressed in the lease.

The Facts

A short summary of the relevant facts is as follows:

  1. In 2009 and 2010, NB2 Pty Limited (the Tenant) negotiated a lease (Lease) for a retail fruit and vegetable shop in the Fresh Food Precinct of the Miranda Westfield Shopping Centre from the owner of the centre (Landlord).
  2. During the negotiations, the Tenant attempted to obtain exclusivity for retailing of fresh fruit and vegetables in the shopping centre. After numerous discussions over a number of months, the Landlord agreed to include a clause in the Lease that the Tenant would be provided with exclusivity only in the Fresh Food Precinct of the shopping

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