DONUT KING AUSTRALIA PTY LIMITED v WAYNE GARDNER RACING PTY LIMITED [2001] NSWCA 275

New South Wales Court of Appeal

CITATION : DONUT KING AUSTRALIA PTY LIMITED v WAYNE GARDNER RACING PTY LIMITED [2001] NSWCA 275 FILE NUMBER(S) : CA 40906/00 HEARING DATE(S) : 10 August 2001 JUDGMENT DATE : 28 August 2001

PARTIES : Donut King Australia Pty Limited - Appellant Wayne Gardner Racing Pty Limited - Respondent JUDGMENT OF : Priestley JA at 1; Meagher JA at 2; Sheller JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT 3524/99 FILE NUMBER(S) : LOWER COURT Boyd-Boland ADCJ JUDICIAL OFFICER :

COUNSEL : BAJ Coles QC/C J Bevan - Appellant P LeG Brereton SC - Respondent SOLICITORS : Beilby Poulden Costello - Appellant A R Yates & Co - Respondent CATCHWORDS : CONTRACT - breach - whether essential term - whether intermediate term - sponsorship agreement - logo to be displayed on racing car shown in incorrect colours LEGISLATION CITED : N/A Tramways Advertising Pty Limited v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 CASES CITED: Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 Shevill v Builders Licensing Board (1982) 149 CLR 620 DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40906/00 DC 3524/99 PRIESTLEY JA MEAGHER JA SHELLER JA

Tuesday, 28 August 2001

DONUT KING AUSTRALIA PTY LIMITED v WAYNE GARDNER RACING PTY LIMITED

The appellant and respondent were parties to a contract for sponsorship. In return for payment, the respondent agreed to provide a number of benefits to the appellant. In particular, the respondent displayed a "Donut King" logo on the bonnet of its racing vehicles. The agreement specified that these words were to be written in pink on a white background. A written agreement reflecting this arrangement was entered into in July 1997, and a further agreement was entered into in October 1997.