IN THE MOOT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL BETWEEN: RADIO BUZZ PTY LTD Appellant and SAMUEL SIMON Respondent WRITTEN SUBMISSIONS OF THE RESPONDENT Senior Counsel for the Respondent – Domenico Cucinotta SUBMISSION ONE The behaviour of Dino and Suzie (“the presenters”) amounted to a breach of the advertisement contract between Samuel Simon (“the Respondent”) and Radio Buzz (“the Appellant”) as: a) the behaviour of the presenters was defective performance of the contract; or Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners [1975] 1 WLR 1095 Astley v Austrust Ltd (1999) 197 CLR 1 at 22 b) the behaviour of the presenters breached an implied term to only speak positively of the Respondent on air; or BP Refinery (Westernport) Ltd v Hastings Shire Council (1977) 180 CLR 266 Hawkins v Clayton (1988) 164 CLR 539 at 573 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 c) the behaviour of the presenters breached an implied duty to perform in good faith Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 at 369 SUBMISSION TWO The contract failure of the presenters to read the advertisements four times every day during the fourth week of the advertising campaign was a breach of a condition of the contract as: a) the requirement to have the advertisement read four times a day went to the root of the contract and as such is a condition; and Tramways Advertising Ltd v Luna Park Ltd (1938) 61 CLR 286 at 302 Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 b) the contract was not exactly performed; and Cutter v Powell (1795) 101 ER 176 Highmist Pty Ltd v Tricare Ltd [2005] QCA 357 c) the principle of “substantial performance” is not available to the Appellant in the instant case as the contract in issue is a commercial contract: Arcos Ltd v E A Ronassen & Son [1933] AC 470 at 479