Rowland v Stevenson - [2005] NSWSC 325

CITATION:
Rowland v Stevenson & Anor [2005] NSWSC 325

HEARING DATE(S): 29/03/05, 30/03/05, 31/03/04

JUDGMENT DATE :

14 April 2005

JUDGMENT OF:
Gzell J

DECISION:
Order for the delivery of the yacht. Damages referred to a Master.

CATCHWORDS:
GIFTS - Gifts Inter Vivos - Whether gift of yacht made - Whether constructive delivery took place - Whether delivery antecedent to words of gift sufficient - Whether requirement of assumption of liability to financier a condition subsequent - Whether transfer of registration under Marine Safety Act 1998 necessary to perfect gift - Whether yacht sufficiently unique to ground an order for its return

LEGISLATION CITED:
Supreme Court Act 1970
Shipping Registration Act 1981 (Cth)
Marine Safety Act 1998

CASES CITED:
Irons v Smallpiece (1819) 2 B & Ald 551 (106 ER 467)
Cochrane v Moore (1890) 25 QBD 57
Flinn v White (1950) SASR 195
Re Stoneham [1919] 1 Ch 149
Horsley v Phillips Fine Art Auctioneers Pty Ltd, NSWSC, unreported, 5 September 1995
Ker v Ker (1869) IR 4 Eq 15
Egerton v Earl Brownlow (1853) 4 HLC 1 (10 ER 359)
Partridge v Partridge (1894) 1 Ch 351 at 357)
Ellis v Chief Adjudication Officer [1998] 1 FLR 184
McKeown v Cavalier Yachts Pty Ltd (1998) 13 NSWLR 303
General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All ER 314
Pargiter v Alexander (1995) 5 Tas R 1

PARTIES:
Neil Mark Rowland - Plaintiff
Stuart Orr Stevenson - Ist Defendant
Shirley Lillian Rowland - 2nd Defendant

FILE NUMBER(S):
SC 2884/04

COUNSEL:
Mr D Feller SC/ Mr D Bernie - Plaintiff
Mr D Alexander - 1st Defendant
Mrs S Rowland - In Person

SOLICITORS:
ES Lawyers
Foulsham & Geddes

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 14 APRIL 2005

2884/04 NEIL MARK ROWLAND v STUART ORR STEVENSON & ANOR

JUDGMENT

1 Shirley Lillian Rowland, the second defendant, and her then husband, Stuart Orr Stevenson, the first defendant, owned a 42 foot Beneteau yacht called French Bee. On the night of the 40th birthday of Neil Mark Rowland, the plaintiff and son of Mrs Rowland, the French Bee was moored outside the restaurant where the party took place. In making a speech in honour of Mr Rowland, Mr Stevenson presented him with a gift and said: “And you can have the boat”. Mr Rowland claimed that the boat was given to him. Mrs Rowland agreed. Mr Stevenson alleged he never intended to make a gift and his words were said in jest.

Background

2 The French Bee was moored in a pen at a mooring in front of the matrimonial home of Mrs Rowland and Mr Stevenson at Pulpit Point, Hunters Hill.

3 During the winter yacht-racing season that ended in June or July 2002, Mr Rowland flew down from Hong Kong to sail on a number of Saturdays. In May or June 2002, on one of these occasions, Mr Rowland said Mr Stevenson spoke to him…

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 Rowland v Stevenson

Details

AGLC: Rowland v Stevenson [2005] NSWSC 325
Case: [2005] NSWSC 325
Decision Date: 14 April 2005

CaseChat Overview and Summary

The case before the court involved Rowland, the plaintiff, and Stevenson, the defendant. The dispute centred around a yacht, which Rowland claimed Stevenson had gifted to him. Rowland sought a declaration that the gift had been made and that Stevenson should be ordered to deliver the yacht to him. The matter was heard in the Supreme Court of Queensland. The primary legal issues the court needed to address were whether a gift of the yacht had been made, whether a constructive delivery had occurred, and if the assumption of liability to a financier was a condition subsequent. Additionally, the court needed to determine if the transfer of registration under the Marine Safety Act 1998 was necessary to perfect the gift and if the yacht was sufficiently unique to warrant an order for its return.

The court began by examining the evidence regarding the alleged gift. It considered whether the assumption of liability to the financier was a condition subsequent, which would mean that the gift was not valid until that condition was fulfilled. The court concluded that this was not the case and that the gift was valid regardless of the assumption of liability. Next, the court looked at whether a constructive delivery had occurred. It found that the transfer of registration was not necessary to perfect the gift, and that the yacht's uniqueness was not a sufficient ground for ordering its return. The court held that the gift had been made and that Rowland was entitled to the yacht. The court ordered that Stevenson deliver the yacht to Rowland.

The court's decision was based on a careful analysis of the evidence and the applicable law. It found that the gift had been made and that Rowland was entitled to the yacht. The court also held that the transfer of registration was not necessary to perfect the gift, and that the yacht's uniqueness was not a sufficient ground for ordering its return. The court ordered that Stevenson deliver the yacht to Rowland. This decision provides guidance on the requirements for making a valid gift of a unique item and the circumstances in which a court may order the return of such an item.

Orders