Case: Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 
Outcome: cited
Old condition 6 operated to confer upon Creative an election to avoid a ticket, if it were resold or transferred for profit or commercial gain. The ticket remained valid unless and until Creative acted by making its election: Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418. Moreover, old condition 6 indicated that the holder 'may be refused entry or rejected', again suggesting that Creative had first to exercise its election before that consequence would be asserted by it. 30 In contrast, new condition 6 is worded to operate upon the happening of an event, namely a resale for profit. On the occurrence of the event the ticket 'will be cancelled and the holder will be refused entry'. Creative says that the same contractual principles of construction apply and that the cancellation of the ticket, despite the imperative wording, is not a contractually automatic consequence of the occurrence of the event of resale for profit. That is because the purchaser is not entitled to rely upon his or her own default in adhering to the contractual requirements, but the innocent party, Creative, is entitled to elect whether to keep the contract alive and, if this is the true construction of the contract, it says that there is nothing misleading or deceptive about its use of words in new condition 6 to convey that meaning. 31 In Suttor 81 CLR at 441 Latham CJ, Williams and Fullagar JJ said that where the event in question was one which could not occur without default on the part of one party to the contract, the position was clear: 'The provision is then construed as making the contract not void but voidable: only the party who is not in default can avoid it, and he may please himself whether he does so or not.' The context of the principle which their Honours were discussing was one in which the party in default would be advantaged if termination occurred automatically. The principle to be applied in such a case is that a party should not be entitled to rely upon his or her own default in respect of the occurrence which the contract provides will bring about its end. 32 In the present situation the intention of the parties is that new condition 6 is to benefit only Creative. The purchaser gains nothing from a termination arising from his or her being in default. Thus the purchaser has no relevant motivation to be in default under new condition 6 so as to render the ticket void. This is quite different from the situation in, say, a conveyancing contract which provides for the contract to be avoided on happening of an event which one or other party or both can bring about. In such a case the implication of a term which denies to the party in default the facility of engineering the end of his or her contractual obligation is necessary. The innocent party should not be put into the position that the party in default can escape from his or her obligation by breaching, rather than adhering to, the contract. 33 The purchaser of a ticket to Big Day Out 2007 has no relevant obligation the breach of which will benefit him or her in a way that it would be to his or her advantage for an automatic cancellation of the ticket to occur. Quite the contrary, the purchaser wishes no such thing to occur by his or her default. The natural and ordinary meaning of new condition 6 suggests that the evident purpose of it is to prevent the purchaser selling the ticket for profit on pain of it being cancelled if he or she did. In that context, the purchaser could not rely on his or her own default in making such a sale so as to escape from an obligation under the contract and thereby render that which he or she seeks to resell valueless. 34 In Gange v Sullivan [1966] HCA 55 ; (1966) 116 CLR 418 at 441, Taylor, Menzies and Owen JJ noted that the first step to deciding the question of construction in the case like the present was to understand the condition and its significance to the parties. They continued: ' Suttor v. Gundowda Pty. Ltd. ((1950) [1950] HCA 35 ; 81 CLR 418), together with other cases, was relied upon to support the conclusion that non-fulfilment of the condition did not of itself bring the contract to an end but did no more than render the contract voidable at the instance of a party not responsible for the non-fulfilment of the condition. Whilst the effect of a condition must in every case depend upon the language in which it is expressed and a decision upon the meaning of one condition cannot determine the meaning of a different condition, the authorities cited do show a disposition on the part of courts to treat non-fulfilment of a condition such as that here under consideration as rendering a contract voidable rather than void in order to forestall a party to a contract from gaining some advantage from his own conduct in securing, or contributing to, the non-fulfilment of a condition bringing the contract to an end.'