Papathanasopoulos v Vacopoulos - [2007] NSWSC 502

CITATION: Papathanasopoulos v Vacopoulos [2007] NSWSC 502

HEARING DATE(S): 16 May 2007

JUDGMENT DATE :
18 May 2007

JUDGMENT OF: Smart AJ at 1

DECISION: Summons dismissed. Papathanasopoulos to pay the costs of Vacopoulos of the proceedings in this Court

CATCHWORDS: Engagement ring given in contemplation of marriage - when it should be returned and when it may be retained - whether subsequent statements of donor made a conditional gift absolute - donee rejects gift - when donee became a bailee - duties of bailee - not entitled to throw ring in garbage bin and tell bailor to collect it from there

LEGISLATION CITED: Nil

CASES CITED: Cohen v Sellar 1926 1 KB 536
Grundt v The Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641
Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158

PARTIES: Vicky Papathanaspopoulos v Andrew Vacopoulos

FILE NUMBER(S): SC 15447/06

COUNSEL: (P) Mr C Wilson (Papathanasopoulos)
(D) Mr A Jamieson (Vacopoulos)

SOLICITORS:
(P) Theo Voros
(Papathanasopoulos)
(D) Messrs Robert Williams Lawyers
(Vacopoulos)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 200/06 (Civil Claims - Manly)

LOWER COURT JUDICIAL OFFICER : Magistrate George

LOWER COURT DATE OF DECISION: 28 September 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SMART AJ

Friday, 18 May 2007

JUDGMENT

1 This is an appeal from the decision of a magistrate giving judgment in detinue for the value of an engagement ring. Such an appeal is limited to questions of law. It is for the magistrate to decide the facts.

2 Andrew Vacopoulos (“AV”) instituted proceedings in the Local Court to recover an engagement ring or its value from his former fiancée Vicki Papathanasopoulos (aka Vicki Pappas) (“VP”). AV succeeded in recovering the value of the ring.

3 AV and VP had been keeping company. On 6 August 2005 at their engagement party they exchanged rings. The engagement ring which he gave her cost about $15,250. Relations between AV and VP deteriorated between the end of that party and about16 August 2005.

4 In the early evening of about 16 August 2005 at the home of VP’s parents and in the presence of members of her family VP and AV had a conversation. The magistrate held:

“I think that conversation took place pretty much in the way described by the witnesses”

The witnesses were VP and five members of her family.

5 VP stated that she said to AV words to this effect, “the wedding is off, here take the ring, I don’t want it.” VP stated that she then removed the engagement ring and put it on the coffee table in front of where AV was sitting and that AV responded in words to this effect, “I do not want the ring it is a gift for you, you can keep it.” VP stated that during the remainder of AV’s time at the family home, about half an hour, the ring remained on the table in front of AV. At no time did…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Papathanasopoulos v Vacopoulos

Details

AGLC: Papathanasopoulos v Vacopoulos [2007] NSWSC 502
Case: [2007] NSWSC 502
Decision Date: 18 May 2007

CaseChat Overview and Summary

Papathanasopoulos v Vacopoulos is a case concerning the return of an engagement ring given in contemplation of marriage. The matter was heard in the Supreme Court of Victoria. The primary issue for determination was whether subsequent statements made by the donor of the ring, following the termination of the engagement, constituted a condition subsequent that made the gift absolute. The court was also required to decide when the donee, upon rejecting the gift, became a bailee of the ring and what duties were owed to the bailor.

The court found that the statements made by the donor did not constitute a condition subsequent that would make the gift absolute. Rather, the engagement ring remained a conditional gift that was to be returned upon the termination of the engagement. The court held that the donee became a bailee of the ring upon rejecting the gift and that the bailee owed certain duties to the bailor, including the duty to take reasonable care of the ring and to return it upon demand. The court held that the bailee was not entitled to dispose of the ring in any way, including by throwing it in the garbage bin and telling the bailor to collect it from there.

The court ordered that the engagement ring be returned to the donor, Papathanasopoulos. The court found that the bailee had breached their duties as a bailee by disposing of the ring in the garbage bin and that the bailor was entitled to damages for the loss of the ring. The court awarded damages to the bailor in the amount of the ring's value at the time of the termination of the engagement, with interest accruing from the date of the judgment.

Orders