Papathanasopoulos v Vacopoulos

PARTIES : Vicky Papathanaspopoulos v Andrew Vacopoulos

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

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

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

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

15447/06: Vicky PAPATHANASOPOULOS v Andrew VACOPOULOS 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 he attempt to pick up the ring or take the ring with him.

6 The magistrate said: "The problem is how to place that conversation in a context because I don't think as a legal proposition there is any question at all that this ring was given to [VP] in contemplation of marriage." … The conversations that took place thereafter [ie, after the ring was given] seem to me to all have been with the intention of trying to preserve the relationship." 7 The magistrate held that the conversation about 16 August 2005 did not make much difference to the quality of the transaction which takes place at an engagement. He thought that the conversation was coloured by the environment.

8 The magistrate was impressed adversely by AV, stating: "Having seen the presentation of the plaintiff in the witness box, I think he's a person who might be capable of saying anything towards achieving a particular result and indeed Mr Wilson put it to him that he's that kind of a person, very persuasive. He would therefore use any possible mechanism to try and advance his argument, and on this occasion he says, 'Take the ring, it's a gift,' and surrounded by his family and her family." 9 The magistrate, after reiterating that the ring was given in contemplation of marriage, continued: "The contract for want of a better word is rejected very shortly after it's made and the consideration being the engagement ring ought to have been returned. It's not a question of saying 'Well he has to come and pick it up'. It's something that was given as a symbol, if nothing else, of the expected ongoing relationship between the parties. If she was rejecting him, then that quite plainly should have been returned. The fact that it was thrown out with the garbage is really neither here nor there apart from, as I say, to emphasise the fact that she had rejected the gift. This is an action for detinue and the proper result from an action in detinue would be the return of the property, but because of the somewhat extraordinary conduct of [VP] and her family with respect to … this valuable item, it's not available to be returned and under the law the only alternative is to return its value." 10 There was evidence to support the magistrate's finding that VP had rejected the gift. Initially, at the meeting about 16 August 2005 she said that the wedding was off, that he should take the ring and that she did not want it. She also stated that she removed the engagement ring and put it on the coffee table in front of AV. After AV had left (and it does not appear exactly when) she "put all of the photographs, jewelry (sic) and other items that were symbolic of my relationship with [AV] in a box and packed them away in a wardrobe in my room." VP said that about 24 August 2005 she said to AV in a telephone conversation, "with the presents we got from the engagement on your side, I want you to pick them up I don't want them, ring my dad to organise a time to pick them up so I'm not in the house." 11 VP complained that about 29 September 2005 AV telephoned her at work, declared his love for her and said he wanted her back. She said that she told him to stop telephoning her and leave her alone. She terminated this conversation. VP telephoned her mother and told her that she (VP) wanted to throw out all the items AV had given her. Her father and AV spoke as did her father and the father of AV. VP's father threw the box with all the items between AV and VP in the rubbish bin. In the early afternoon of 29 September 2005 AV sent an email which stated, amongst other things: "Your dad said that he tore up my photos and threw the ring in the garbage. Why is this happening, I don't want it to happen." 12 VP agreed in cross-examination that during January/February 2006 she met with AV for lunch and they had discussions. VP said that they never talked about the engagement. Also in cross-examination VP said that the engagement ring was not given to her on 16 August 2005 but on 6 August 2005, the date of the engagement party and that this was the only time that the engagement ring had been given to her. 13 If a party rejects the gift of an item as the magistrate found, it is not open to her, if she later takes control of the item, to claim the item as a gift when she continues to assert that she does not want it and asks for it to be thrown out. A party cannot be forced to take or accept a gift .. Upon VP rejecting the gift she became a bailee of that item so long as she had it in her control. It is not open to a bailee to cause the item bailed to be thrown into the garbage bin. This is especially so where the item is valuable and no proper notice was given and but a short time had elapsed. Holding a small item, such as an engagement ring is not a great chore. I do not accept the contention that it was irrelevant that VP rejected the gift of the engagement ring. 14 During argument I raised with counsel for VP whether the pleadings included a plea of justification. He told me that in his recall there was no plea of justification. That issue did not seem to be argued before the magistrate. In Cohen v Sellar 1926 1 KB 536 at 537 in the statement of facts it was noted that the defence contained no plea of legal justification for breaking off the engagement. It was evidently considered that in some circumstances such a plea was available. Some of the evidence seems to go to such an issue. It would not be fair to consider such an issue if the matter was not litigated before the magistrate . 15 I commented to counsel that the case before the magistrate seemed to have been argued on the basis that the subsequent conversations that were held about 16 August 2005 amounted to making what was a conditional gift, an absolute one. Counsel for VP replied that that was VP's argument in the lower Court. The magistrate did not accept that the character of the conditional gift in contemplation of marriage had been changed into a completed (or unconditional) gift by what took place about 16 August 2005. 16 In Cohen v Sellar, cited above, McCardie J undertook an extensive review of the law relating to engagement rings. These principles emerge especially at 547 - 549: (a) If a woman who has received a ring in contemplation of marriage refuses to fulfil the conditions of the gift she must return it. (b) If a man has, without a recognised legal justification, refused to carry out his promise of marriage, he cannot demand the return of the engagement ring. (c) It matters not in law that the repudiation of the promise may turn out to the ultimate advantage of both parties. A judge must apply the existing law as to the limits of justification for breach. (d) If the engagement to marry be dissolved by mutual consent, then in the absence of agreement to the contrary, the engagement ring and like gifts must be returned by each party to the other. 17 It seems that a woman would also be able to raise a plea of legal justification of her decision to refuse to carry out her promise of marriage. There may be repudiatory conduct on the man's part, for example, acts of violence towards the woman or having a steady and sexual relationship with another woman. In such circumstances the woman can probably keep the ring.

18 In Cohen v Sellar at 548 McCardie J remarked: "By the slow growth of decisions the promise of marriage is to-day fixed with many of the characteristics of a commercial bargain. It is governed largely by the principles of law applicable to ordinary contracts." 19 His Lordship then referred to a number of general principles of contract law, applied in a commercial setting and continued: "A like result to that I have already stated will follow if an engagement ring be regarded as a pledge or deposit for the fulfilment of a contract. A person who wrongly refuses to carry out a bargain will lose his deposit." ( citations omitted ) 20 The present case is the reverse of that situation. If without legal justification the woman refuses to carry out her promise she cannot keep and must return the ring.

21 VP sought to avoid the impact of these principles by asserting that the conditional gift made on 6 August 2005 became an absolute gift by reason of what occurred about 16 August 2005. The magistrate did not accept this contention.

22 The magistrate took the view that the general effect of the conversations that took place after 6 August 2005 and in which the statements of AV were of importance were with the intention of trying to preserve the relationship. AV appeared to want the relationship to continue and the marriage to occur.

23 I turn now to the grounds of appeal relied on by VP.

24 Firstly and principally, VP complained that the magistrate decided the matter contrary to the facts. Counsel pointed out that the magistrate accepted that a conversation of the kind deposed to by VP and her witnesses as having occurred about 16 August 2005 "took place pretty much in the way described by the witnesses." The magistrate did not accept AV's evidence to the contrary and did not find AV to be a satisfactory witness.

25 VP relied on the principle that equity would recognise a voluntary assignment of legal property assignable at law if the intending donor has done everything necessary to effect a transfer of the legal title: Corin v Patton (1990) 169 CLR 540 at 559 per Mason CJ and McHugh J and at 582 per Deane J.

26 One difficulty is that VP never accepted the gift of the ring either about 16 August 2005 or subsequently. She became the bailee of the ring.

27 I do not accept VP's contention that once AV made the statement attributed to him about 16 August 2005 and left the engagement ring on the coffee table it became her property to keep or dispose of as she wished.

28 The magistrate approached the matter on the basis of the highly charged emotional atmosphere of the meeting about 16 August 2005 when members of her family were present and AV was endeavouring to keep the relationship with VP alive. The magistrate did not think that the conversation on this day altered the essential nature of the gift, that is, that it was a gift in contemplation of marriage. That was a view which was open on the evidence.

29 VP's second ground of complaint was that the magistrate failed to make a finding that AV was estopped by his conduct from seeking the return of the ring.

30 VP submitted that a party is not permitted unjustly to depart from a representation by words or conduct of an existing fact if the representee has acted in reliance on it: Thompson v Palmer (1933) 49 CLR 507 at 547 per Dixon J; Grundt v The Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 at 674-6 per Dixon J; Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158 at [200]. The lengthy discussion of Dixon J in Grundt is illuminating.

31 VP submitted that AV's actions in telling VP that the ring was hers and leaving it on her table and inaction in not collecting the ring when informed where it was, permitted VP's father and VP to assume that the ring was that of VP to do with as she pleased. VP acted on this assumption by disposing of the ring. VP submitted that "it would be unjust to permit [AV] to depart from the assumption, that he has caused [VP] to assume, that the ring was hers to do with as she pleased."

32 In my opinion the second submission is unsound. As previously mentioned there was evidence that AV was trying to preserve the relationship with VP and their agreement. She rejected the gift of the engagement ring. There was evidence that she (or her father on her behalf) threw out the engagement ring and other gifts from AV so she would have nothing of his and nothing to remind her of him. It is not permissible for a bailee to state or rely on her agent (her father) stating to the bailor that the engagement ring had been thrown in the garbage bin and that if the bailor wants it he can collect it from there.

33 The magistrate was correct in not finding that AV was estopped from seeking to recover the value of the engagement ring.

34 The magistrate did not err in law. The summons of VP is dismissed. VP is ordered to pay the costs of AV of the proceedings in this Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.