By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Nassau Airport Development Company (NAD) violated its duty to deal “in good faith” with a prominent businesswoman over renewing a restaurant lease formerly embroiled in a political firestorm.

Justice Loren Klein, in a September 28, 2025, verdict awarded Patricia Mortimer and her Patmor Group of Companies unspecified damages after finding that Lynden Pindling International Airport’s (LPIA) operator was “hoisted by their petards” over how it handled negotiations for the renewal of one of the three leases she held.

However, he refused to issue an Order for “specific performance” mandating that NAD consider extending the disputed lease and declared that “there is no clear victor in this matter”. And, while Justice Klein granted Ms Mortimer and her companies a temporary injunction “to prevent interference” with the lease prior to a full trial, he suggested this was moot because the two sides are still negotiating.

The judge also declined Ms Mortimer’s request for a declaration that the April 1, 2007, “transfer agreement”, which saw the Airport Authority transfer operational responsibility for LPIA to NAD, was illegal or invalid “as this has not been established as a matter of fact or law”. He added that she was not able to seek such a declaration based on her case before the Supreme Court.

As to the disputed lease, Justice Klein found that NAD’s defence was based on terms that were overridden - and replaced - by a deed of settlement that it agreed with Ms Mortimer and her companies on March 3, 2017, to address the multi-million dollar rental arrears that the latter had accumulated on their retail and restaurant operations in the US departures terminal.

While the LPIA operator argued it was “not commercially feasible” to renew or extend the lease deal with Ms Mortimer, because it had been “generating limited revenue”, Justice Klein described this as “irrelevant” and suggested NAD “could not have approached” the issue with “an open mind” as it focused solely on its own economic interests and ignored the new terms set out in the settlement deed. 

The settlement deed, which was central to the latest dispute between LPIA’s operator and Patmor and its affiliates, was also at the heart of a political controversy that erupted in June 2017 after Dionisio D’Aguilar, then-minister of tourism and aviation, accused the former NAD Board of bailing out Ms Mortimer and her group by writing-off, or forgiving, $1.2m of $3.3m in unpaid rental arrears.

Speaking in the House of Assembly, he asserted that this was done because of Ms Mortimer’s long-standing political connections to the then-governing Progressive Liberal Party (PLP). This prompted a furious backlash from former prime minister, Perry Christie; the previous NAD chairman, Anthony McKinney KC, and Ms Mortimer’s then-attorney, Wayne Munroe KC, who all denied political favoritism.

Mr McKinney, in a statement at the time, confirmed it was agreed that the $1.2m, or more than one-third of what was owed, would be written-off. As for the remaining $2.2m, some $800,000 was to be paid within 90 days after the settlement’s March 3, 2017, execution, with the remaining arrears and interest to be dealt with “on terms to be discussed and agreed”.

Mr Munroe, now minister of national security, told Tribune Business at the time that Ms Mortimer felt she was being treated unfairly by having to pay a rental rate almost four times’ as much as other LPIA tenants.

He asserted that she was being charged rent at 38 per cent of gross profits, compared to 10 percent for other LPIA tenants, and argued that the $1.2m write-off related to another LPIA tenant, Tyrone Nabbie’s Kafe Kalik restaurants, whose obligations Ms Mortimer had inherited after she provided a guarantee to back them.

While the political controversy swiftly died down, NAD and Ms Mortimer’s companies again found themselves at odds just two years later in a fresh battle that would produce Justice Klein’s ruling. Ms Mortimer, perhaps referring to earlier events, asserted that she and her corporate group were being targeted by a “co-ordinated conspiracy” to force them out of LPIA although she provided no names.

“The plaintiffs belong to a group of companies that lease retail space in the airport, in which they operate a restaurant, news-stand and souvenir businesses,” Justice Klein wrote.

“It appears that the catalytic events for the litigation took place during July 2019, when the first defendant [NAD] indicated that it would not renew one of three leases held by the plaintiffs following its expiration, citing various concerns about the performance of that business.”

This prompted Ms Mortimer and the Patmor Group, including its affiliates Olde Nassau Holdings and Remitrom Enterprises (formerly LPI Concessions), to launch legal action to prevent their “removal from the demised premises” covered by the lease. Justice Klein noted that they had leased commercial space at both LPIA and its predecessor “for several decades”.

Describing the disputed lease as the ‘Parma Lease’, he added that this as well as two other leases - for the news stand and restaurant respectively - were covered by the March 3, 2017, deed of settlement.

“It appears that during the years of their operation in the airport, the plaintiffs accrued significant arrears in connection with the rent for the Parma lease, and the primary purpose of the deed was to restructure the debt of the plaintiff companies on the terms stipulated in the deed,” Justice Klein wrote.

“The plaintiffs allege that the indebtedness was caused largely by the fact that, under the Parma lease, the plaintiffs’ monthly rent formula was calculated at between 35 percent to 38 percent of gross sales when other tenants’ monthly rents were pegged at 10 percent.

“The formula used to determine the rent was apparently linked to NAD’s estimated weekly enplanements of 3,000-4,500 passengers on Tuesdays through Thursdays, and 4,500-6,000 passengers on Fridays to Monday. These were said to be ‘overly optimistic’ and apparently were never realised,” the judge added.

“Nevertheless, based on these estimates, the plaintiffs allege that they undertook additional expenses associated with building out the leased spaces to meet the technical requirements, and the rent kept accruing ‘at a gross sales rate tied to a mistaken enplanement estimate’.

“After some time had passed, it appears that NAD agreed to reduce the monthly rental payments to 10 percent of gross sales. However, the arrears had by then ballooned to ‘X amount’ at the time of the execution of the deed.” 

It is unclear why Justice Klein’s judgment blanked out the sums owed and agreed to be written-off, together with details of Patmor Group’s payment plan, as these had all been disclosed when the political controversy erupted in 2017. However, that settlement was far from the end of the two sides’ differences.

“Things came to a head, however, when the plaintiffs received several letters from NAD, and later from its attorneys, indicating that a decision had been reached not to renew the Parma lease,” Justice Klein noted.

Ms Mortimer, in an affidavit, asserted: “NAD’s January 31, 2019, letter to me stated that due consideration was given to renewal of lease number NAD-FB-08-004 then set to expire on March 31, 2019, and it had been determined that ‘an automatic renewal of the lease would not be in the best interest or even reasonable”.”

The LPIA operator justified its decision on five grounds, including that the restaurant “relative to other food and beverage concessions within proximity... is well below the average revenue generated by other concessions within the food court”.

It added that a 2018 review of its food, retail and other tenants by Pragma Consulting concluded “that the concessions should be yielding more revenue, and the recommendation is that the lease should not be renewed upon expiration”.

Instead, NAD said it would put the lease and associated space out to bid “through a transparent and open” tender process with Ms Mortimer’s Olde Nassau Holdings invited to bid due to its “steady payment history since the execution of the deed of settlement”. This, NAD added, was counter to its policy of not permitting entities to bid that have defaulted on prior obligations with the airport operator.

Ms Mortimer, now represented by Maurice Glinton KC, headed straight for the Supreme Court due to a “realistic fear” she would lose a valuable commercial operation. “That it is a near certainty to happening appears from a June 6, 2019, letter from NAD’s attorneys denying the plaintiffs’ request by a letter of May 30, 2019, for NAD to reconsider its final decision,” she alleged in affidavit evidence.

“The Patmor Group [of] Companies, which are and have been good tenants in LPIA, are victims of a government-owned, unlawfully operated private company, NAD, part of a co-ordinated conspiracy with others to appropriate and then dispose of the property and the business.

“Therefore, unless this honourable court intervenes by granting interim relief pending trial of the writ action, such unlawfulness will have worked a grave injustice, causing me and them irremediable loss of reputation in the business community having eliminated our business in the LPIA.”

Ms Mortimer continued: “The most profitable of their businesses in LPIA are a restaurant and retail souveniur and concession shop that previously operated in the older (now demolished) section of LPIA over the last 30 years in leased spaces covering an area of about 8,900 square feet.

“The business employs some 100 persons primarily in the international airport locations, all of whom along with the businesses will be adversely and immediately affect were the leases upon expiration not renewed as provided therein or not extended as the deed contemplates, and NAD continues the RPF (request for proposal) process unrestrained by a court Order.”

While Justice Klein granted the temporary injunction sought by Ms Mortimer to prevent her suffering “financial loss, and being put to great expense and being irreparably damaged”, he added that this was “a mere formality” as NAD had already seemed to agree to “hold the ring” by not interfering with the disputed lease. The two sides had also “continued in negotiations”.

As for Ms Mortimer’s and Patmor’s bid for summary judgment, on the basis that NAD had provided no arguable defence to their claim, Justice Klein found that the airport operator had based its decision not to renew the Parma lease on the old terms that had been replaced by the March 3, 2017, deed of settlement.

The new terms merely mandated that NAD “agrees to consider in good faith a five-year extension of each of the lease agreement extensions” provided Patmor met “on a timely basis” all its financial and other obligations to it - a condition the airport operator confirmed it had complied with since the settlement deed was signed.

NAD, in arguing that it had met the “good faith” stipulation, asserted “that they complied with this duty by, among other things, commissioning an independent study to review the leases, which determined that it was not commercially feasible to renew the Parma lease.

“A consideration was also said to be the ‘demonstrated history’ in relation to the Parma lease of generating limited revenue. Further, they say that an offer was made to the plaintiffs to participate in an RFP (request for proposal) process in relation to proposals for leases of the space,” Justice Klein ruled.

“On the issue of whether they complied with the minimum requirements to consider the extension in good faith, in my opinion the defendants are hoisted by their petards. In fact, they have admitted that they formed the conclusion that the extension of the lease was not ‘commercially feasible’ based on the study, and the breaches of the ‘conditions precedent’ in the original lease.

“As to the former, this shows that the defendants [NAD] could not have approached the exercise of their duty to consider the extension obligation with an open mind, and the latter shows that in fact they were importing pre-conditions from the original lease, when on the clear language of the deed - as the court has found - they no longer applied to the exercise of the obligation to consider the extension in good faith,” he added.

“Most strikingly, it is apparent that they did not take into consideration at all the interest of the plaintiffs, or the purpose for which they had negotiated the deed. In fact, the reasons given for refusing the extension make it clear that their focus was mainly - if not exclusively - on their own economic interests, and no regard was given to the position of the plaintiffs.

“Further, the invitation to participate in the RFP and NAD’s indication that it was ‘entirely willing to give due, equal and unbiased consideration to any proposal advanced’ was entirely irrelevant to the consideration of the extension under the deed. In fact, participation in the RFP could only have been on the basis that the extension had already been refused and that the plaintiffs were relegated to competing with others for the award of the lease.”

As a result, Justice Klein ruled that NAD’s defence had “no real prospect of success”, and added: “In my judgment, the first defendant breached its obligation to consider the extension of the Parma lease in good faith, when it indicated it would not renew/extend the lease, in particular because it did not deal fairly and openly with the plaintiffs and did not have regard to the plaintiffs’ interest.”

However, he declined to Order “specific performance” and mandate that NAD consider extending the lease “in good faith” after determining that damages would be an adequate remedy.