Breadsell v Nationwide News Pty Ltd [1998] QCA 48

IN THE COURT OF APPEAL [1998] QCA 048 SUPREME COURT OF QUEENSLAND Appeal No. 4224 of 1997 Brisbane [Breadsell v. Nationwide News P/L & Ors.] BETWEEN: DENISE BREADSELL (Plaintiff) Appellant AND: NATIONWIDE NEWS PTY. LIMITED (ACN 008 438 828) (First Defendant) First Respondent AND: YU FENG PTY. LTD. (ACN 056 974 844) (Second Defendant) Second Respondent AND: RIVERSIDE INVESTMENTS PTY. LTD (ACN 010 662 334) (Third Defendant) Third Respondent Fitzgerald P. Davies J.A. Williams J. Judgment delivered 20 March 1998 Separate reasons for judgment of each member of the Court, each concurring as to the orders made. APPEAL DISMISSED WITH COSTS. CATCHWORDS: CONTRACT LAW - terms of contract - advertised competition to win a motor vehicle - whether an implied term that the competition was for the advertised prize only and that entry forms could not be used to draw any other prize beforehand - whether, if such implied term did exist, the appellant was entitled to damages being the value of the advertised prize. Counsel: Mr. P. A. Keane Q.C., with him Mr. A. W. Duffy, for the appellant -- 1 of 13 -- Mr. S. L. Doyle S.C., with him Mr. A. M. Daubney, for the respondents Solicitors: Ebsworth & Ebsworth for the appellant Barry & Nilsson for the respondents Hearing Date: 10 March 1998 -- 2 of 13 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 4224 of 1997 Brisbane Before Fitzgerald P Davies JA Williams J [Breadsell v. Nationwide News P/L & Ors.] BETWEEN: DENISE BREADSELL (Plaintiff) Appellant AND: NATIONWIDE NEWS PTY LTD (ACN 008 438 828) (First Defendant) First Respondent AND: YU FENG PTY LTD (ACN 056 974 844) (Second Defendant) Second Respondent AND: RIVERSIDE INVESTMENTS PTY LTD (ACN 010 662 334) (Third Defendant) Third Respondent REASONS FOR JUDGMENT - FITZGERALD P. Judgment delivered 20 March 1998 The circumstances giving rise to this appeal are set out in the reasons for judgment of Davies J.A. I agree with his Honour that the appeal must be dismissed with costs. I propose to add only one paragraph by way of elaboration. -- 3 of 13 -- -- 4 of 13 -- The appellant’s claim was that, by holding a draw for the television set prior to the draw for the BMW vehicle, the respondents breached their contractual obligations to her and her loss was equivalent to the value of the BMW. That seems to me to be plainly illogical. The appellant was wrongly deprived of the BMW only if she was contractually entitled to it. She had no contractual entitlement to the BMW unless the draw in which she won the television set was not a breach of contract but performance of the contractual promise to draw the sales docket which entitled the person whose name appeared on the back of the docket to the BMW. The appellant made no such claim. -- 5 of 13 -- -- 6 of 13 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 4224 of 1997 Brisbane Before Fitzgerald P. Davies J.A. Williams J. [Breadsell v. Nationwide News P/L & Ors.] BETWEEN: DENISE BREADSELL (Plaintiff) Appellant AND: NATIONWIDE NEWS PTY. LIMITED (ACN 008 438 828) (First Defendant) First Respondent AND: YU FENG PTY. LTD. (ACN 056 974 844) (Second Defendant) Second Respondent AND: RIVERSIDE INVESTMENTS PTY. LTD (ACN 010 662 334) (Third Defendant) Third Respondent REASONS FOR JUDGMENT - DAVIES J.A. Judgment delivered 20 March 1998 The appellant responded to an advertisement which appeared in the first respondent's newspaper on 19 or 26 April 1995 in the following terms: " WIN A BMW 316i COMPACT COURTESY OF JOHN TRIVETT'S BRISBANE BMW, SUNNYBANK PLAZA AND QUEST COMMUNITY NEWSPAPERS HOW TO ENTER Simply fill out your name, address, phone number and age on the back of a sales docket -- 7 of 13 -- of $10 or more. Then place it in the entry barrel located next to our BMW on display in the new Food Court and be at the draw 9.30am Saturday 29th April, 1995. THE WINNER MUST BE AT THE DRAW TO CLAIM THEIR PRIZE! Conditions of Entry: To be eligible - entrant's name, address, phone number and age must appear clearly on the back of a receipt from any purchase of $10.00 or more made within the centre. The winner must be over 18 years of age and have proof of identification. ... The judge's decision will be final and no correspondence will be entered into. The prize is a BMW 316i Compact and includes registration and on-road costs ... THE WINNER MUST BE AT THE DRAW TO CLAIM THE PRIZE. Quest Community Newspapers Sunnybank Plaza John Trivett's Brisbane BMW 365 Wickham Street, Fortitude Valley, Qld Telephone: (07) 252 1010. Licence 1018745." In compliance with that advertisement the appellant entered the competition and was present at the draw on Saturday 29 April 1995. On that day, as the learned trial Judge found, a person acting on behalf of the respondents announced that there would be a second prize in the competition and that that would be a television set. It was then announced that a draw for the television set would be conducted first, that was conducted at 9.20 a.m., a sales docket with the appellant's name on the back was drawn from the entry barrel and she was announced as the winner of the television set. Her sales docket was then returned to the barrel for the draw of the BMW which took place, pursuant to the original advertisement, at approximately 9.30 a.m. Another person's docket was drawn on that occasion and that other person announced as the winner of the BMW. The appellant took delivery of the television set and used it for a time. The appellant claimed damages against the respondents, the measure of those damages being the value of the BMW. The claim was framed alternatively as one for breach of contract or one in negligence. The latter claim was not pursued in this appeal. The terms of the contract made by acceptance by the appellant of the respondents' offer contained in the advertisement, was alleged by the appellant to contain promises by the respondents that they would: (a) draw the prize at 9.30 a.m. on 29 April 1995; -- 8 of 13 -- 3 (b) ensure that any person who carried out the acts in the advertisement would have a fair and equal chance of winning the prize at its drawing; (c) deliver full title of the prize to the person properly drawn as the winner of the prize; (d) carry out the competition according to law, and in particular, would comply with the provisions of the Art Unions and Public Amusements Act 1992; and (e) award only the prize stated in the advertisement. The learned trial Judge found that the promises alleged in paragraphs (a), (b) and (c) were terms of the contract between the parties but those in paragraphs (d) and (e) were not. As the appellant alleged breaches only of the terms stated in paragraphs (d) and (e) his Honour held that her claim in contract failed. Before this Court the appellant did not seek to overturn his Honour's finding with respect to the term alleged in paragraph (d). The main argument of the appellant was with respect to paragraph (e). The appellant's submission as to the content of this promise was put in two ways: 1. that there was to be one draw in the competition for the BMW; and 2. that the competition was for one prize, the BMW, and the entry forms could not be used to draw any other prize beforehand; the second being an elaboration of the first. It was conceded by the appellant that, in order to prove breach of this term, it was necessary to establish, contrary to his Honour's finding, that the television set was drawn as part of the competition for the BMW. It is plain that a term, in either of the forms stated, if it existed, was implied; there was no express term to that effect. -- 9 of 13 -- 4 Mr. Doyle S.C., for the respondents, submitted that such a term fails to meet the tests of reasonableness and necessity to give business efficacy required by law. I agree. Indeed, on the contrary, the implication of such a term would be unreasonable for it would prevent the respondents from giving the appellant and other entrants in the competition additional opportunities to win prizes without detracting from their chances of winning the BMW. That is, in my view, what the respondents did on this occasion. They performed the express terms of the contract at the appointed time by drawing, from entry forms in a barrel including that of the appellant, an entry form, which complied with the terms of the competition, of an entrant who was present to claim the prize. But they also gave entrants in the competition an additional chance to win another prize. I do not think it matters whether or not that was as part of the competition which they had entered. What I have said so far is sufficient to dispose of the appeal. However Mr. Doyle submitted that, even if the appellant proved a breach of contract by the respondents she could not prove damage and in particular could not prove damage to the value of the BMW. If conducting a draw for an additional prize before conducting the draw for the BMW was a breach of a contractual term not to conduct any other draw it does not follow that that act of breach was itself the draw for the BMW or should be deemed to be so. But the appellant needed to equate the act of breach with the draw for the BMW in order to say that the value of the BMW was the measure of her damage. In truth the conduct of an additional draw, even if in breach of contract, resulted in no loss to the appellant. There was a further alternative submission made by the respondent with respect to variation of the contract by conduct but in view of the conclusions which I have reached it is unnecessary to deal with it. In summary, because the contract did not contain the implied term alleged by the appellant the appeal must fail and should be dismissed with costs. -- 10 of 13 -- 5 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No.4224 of 1997 Brisbane Before Fitzgerald P Davies JA Williams J [Breadsell v Nationwide News P/L & Ors.] BETWEEN: DENISE BREADSELL (Plaintiff) Appellant AND: NATIONWIDE NEWS PTY LIMITED (ACN 008 438 828) (First Defendant) First Respondent AND: YU FENG PTY LTD (ACN 056 974 844) (Second Defendant) Second Respondent AND: RIVERSIDE INVESTMENTS PTY LTD (ACN 010 662 334) (Third Defendant) Third Respondent REASONS FOR JUDGMENT - WILLIAMS J Judgment delivered 20 March 1998 I have read the reasons for judgment of Davies JA and agree entirely with them. -- 11 of 13 -- 6 The facts, in my view, have been found entirely against the appellant and there is no basis for this court interfering with them. The learned trial judge found that the TV draw and the BMW draw were “completely separate events”. There was ample evidence to support that finding. Counsel for the appellant sought comfort in certain Answers to Interrogatories made on behalf of the respondents. One such answer was in these terms: “Immediately prior to the drawing of the competition, the person who was announcing the draw of the competition orally stated words to the effect that: (a) There would now be a second prize in the competition; (b) The second prize was a television.” It was contended on the appellant’s behalf that such answer meant that there was to be a first prize and a second prize in the one competition. That is not necessarily the proper construction to be placed on that answer. It is, at best for the appellant, equivocal. The New Shorter Oxford English Dictionary gives, inter alia, the following meanings for the word “second”: “Coming next after the first in time, order, series, succession, position, occurrence... Other, another; additional to that which has already existed, taken place, been mentioned...” Looked at in isolation the answer to the Interrogatory could bear either of those meanings of the word “second”, but when it is considered in the light of all the evidence it is clear, as was the finding of the learned trial judge, that the latter of the meanings was that intended. But even if the appellant succeeded on other issues she would, in my view, necessarily fail because it does not follow from the fact that the first draw was in breach of contract that it should be deemed to be the proper draw for the competition contended for by the appellant. I agree that the appeal should be dismissed with costs. -- 12 of 13 -- 7 -- 13 of 13 --