Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2)

The dispute arose between Targeted Property Investments Pty Ltd and Look Up Technologies Pty Ltd, the latter being a tenant of premises at 255 Pacific Highway, North Sydney. The landlord sought to terminate the lease on the basis that the premises did not constitute a “retail shop” and the lease was not a “retail shop lease” as defined by the Retail Leases Act 2003 (NSW). The primary issue before the court was whether the premises and the lease were subject to the Retail Leases Act. This involved determining whether the premises could be categorised as a “retail shop” and whether the lease fell under the definition of a “retail shop lease”. The tenant argued that the premises were not a “retail shop” and that the lease was not a “retail shop lease”, thereby exempting it from the Act's provisions.

The court considered the definitions in the Act and examined the nature of the premises and the lease. It found that the premises did not fit the definition of a “retail shop” because they were not used for the sale of goods for consumption or use on the premises. The court also held that the lease was not a “retail shop lease” as it did not concern the occupation of premises for the purpose of carrying on a retail business. As a result, the court concluded that the NCAT did not have jurisdiction over the dispute. The court further determined that there was no error in the NCAT’s findings of fact and dismissed the appeal on the grounds that there was no “no evidence” for the findings made.

The court ordered that the appeal be dismissed with costs. The decision emphasised the importance of the definitions in the Retail Leases Act and clarified the jurisdictional boundaries of the NCAT in relation to retail tenancy disputes. The court’s ruling provided a clear distinction between premises and leases that fall under the Act and those that do not, guiding future litigation in this area.