Tutorial 4 Worked PDF

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Tutorial 4: Ratio, Orbiter & Material Facts Exercise one 1. Brief statement of the material facts Plaintiff – Miss Cissie Cohen, 24. Defendant – Mr Nathan Seller, 27. Agreed to marry in August 1923 December 1923 engagement ring given worth 30pounds December 1924 split Defendant refused to marry Plaintiff 2. What is the reason for decision a. What is the ratio decidendi “In any event it would have been right that the plaintiff should keep possession of the ring so that she might be able to take it in execution for the damages and costs awards in her favour against the defendant”

b. What were the justificatory or substantive reasons In applying the rule of contract, the ring being under conditions for the marriage to take place, similar to that of a deposit and the party in which breaches these conditions is the party in which forfeits the deposit. 3. Any orbiter dicta ‘The judgement I have given does not, of course, touch gifts which, as in Lockyer v Simpson Mosley 298, are absolute and free from condition. It touched conditional gifts only.

Exercise 2 One day after Sydney man, Andrew Vacopoulos, gave his girlfriend a $15,000 engagement ring she called off the wedding. She (or her father) threw the engagement ring into the garbage along with other mementos of the relationship. Andrew was upset and took the matter to court. Use an electronic database (e.g. Lexis or Westlaw) to find this case. It was decided by the New South Wales Supreme Court. Answer the following questions: 1. State the full citation for this case and the reported judgment date. Papathanasopoulus v Vacopoulos [2007] NSWSC 502 18/5/2007 2. What kind of hearing took place in the Supreme Court? Explain the procedural history of the case.

3. What was the court’s decision? VP was Bailee and therefore had a duty to take care of the ring and until deliver back to bailor. VP ordered to pay costs of AV and proceedings 4. What precedent did the court follow? Cohen v Sellar Duty of Bailee to Bailor. 5. What arguments about ownership of the ring did the court reject? That VP had ownership rights to the ring after announcing termination of marriage.

Exercise 3 Mary and Michael are engaged. Mary (who is a female) has given Michael (who is a male) an expensive ring, which they both refer to as his engagement ring. Though her love is true, he falls for someone else and heartlessly breaks off the engagement. She asks him to return the ring and he refuses. 1. Advise her whether she will be able to successfully sue for its return. Yes, as he broke the contract. Ring is promissory on condition of marriage. Michael broke this and therefore should return such promissory property.

2. Does this have any consequences for the analysis of the ratio of Cohen v Sellar that you have identified above? It supports the above ratio. CRICOS Provider Code 00301J Curtin University is a trademark of Curtin University of Technology.

Exercise 4 Suppose now Michael’s new boyfriend, Peter (who is a male), gives him what they and their friends regard as an engagement ring, and Michael breaks off the relationship. 1. Does the analysis from the Michael and Mary problem extend to this situation? Yes, the same principle applies, Michael has breached the contract, hence should return the promissory property to Peter.

Exercise 5 Your answers to exercise 3 and 4 may suggest that, generally speaking, the personal characteristics of those involved in legal proceedings (i.e. their gender, sexuality, age, disability, religion, race etc.) are not relevant to how the law should apply to them. 1. Can you think of situations where the party’s personal characteristics are, or should be, taken into account? Consider, as a starting point, the appellant in Hart v Rankin. To what extent was the fact that he was an Indigenous man relevant to the Court’s determination? Terms of discrimination of race or gender. They did not accept his guilty plea due to not being satisfied that he understood the charges under s49 of the Aboriginal Affairs Planning Authority Act. To what extent should it have been relevant?...