Toh v Su [2017] NSWLC 10

Local Court New South Wales

Medium Neutral Citation: Toh v Su [2017] NSWLC 10 Hearing dates: 7 June 2017 Decision date: 27 June 2017 Jurisdiction: Civil Before: Brender LCM Decision: The defendant is to deliver to the plaintiff the two wedding bands and pay the plaintiff $1,000 Catchwords: CIVIL PROCEEDINGS – claim for return of money and property – broken engagement – gifts and purchases in contemplation of marriage Legislation Cited: Marriage Act (Cth) 1961 Family Law Act 1975 Cases Cited: Baumgartner v Baumgartner [1987] HCA 59, (1987) 164 CLR 137 Cohen v Seller [1926] 1 KB 536 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 Davies v Messner [1975] 12 SASR 333 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 Ikeuchi v Liu [2001] QSC 054 Jenkins v Wynen [1992] 1 Qd R 40 Merritt v Merritt [1970] 1 WLR 1211 Muschinski v Dodds [1985] HCA 78, (1985) 160 CLR 583 Papathanaspoulos v Vacopoulos [2007] NSWSC 502 Public Trustee v Kukulu (1990) 14 Fam LR 97 Category: Principal judgment Parties: Edwin Shien Bing Toh (plaintiff) Winnie Chu Ling Su (defendant) Representation: Solicitors: J Saxton (for the plaintiff) H Lu (for the defendant) File Number(s): 2016/207093

Judgment 1. Mr Toh (the plaintiff) and Ms Su (the defendant) were introduced by a mutual friend, starting going out together and decided to marry. The marriage was later called off. This unfortunate dispute concerns the broken engagement and a claim for return of property and money. 2. The plaintiff and the defendant met in 2015 and in about October agreed that in the future they would get engaged and marry. On about 17 October 2015 they opened joint bank accounts. On about 25 October they went to a jewellery store and the plaintiff bought a diamond engagement ring for $15,500, a male wedding band for $500 and a female wedding band for $800. On about 5 December the plaintiff proposed marriage and the defendant accepted. The engagement ring was presented to her. They re-enacted the scene for a photographer. On about 9 December the plaintiff gave the defendant the two wedding bands prior to their departure for a trip to China so that she could show them to her parents. 3. During the relationship the plaintiff bought some gifts for the defendant including an iPhone, a Longines watch, a diamond necklace, a Louis Vuitton handbag and a Samsonite suitcase. In total those five items cost about $5,000. 4. In about late February 2016 they purchased a bedroom suite for $2,640. The money initially came by way of a deposit of $1,000 from the joint account and the defendant says she provided that money to the joint account. The plaintiff says he later deposited $2,640 to the joint account and $1,640 was paid from the account to the shop. Later on the order was cancelled. The defendant received $1,000 personally from the owner of the shop, whom she knew, and $1,640 was refunded into the joint account. At the time of the refund of the money the account was empty because the plaintiff had removed a large sum from the account which he says he had put in there to pay for the wedding expenses, and the defendant had removed the balance from the account. The $1,640 remains in the account and is the subject of these proceedings, as is the engagement ring, the wedding rings and the five gift items 5. On 5 March 2016 there was a meeting between the plaintiff, the defendant and a friend at which it is agreed that the plaintiff said words to the effect that he no longer wished to marry the defendant or be in a relationship with her, and he said "everything that belongs to each party will be returned to each party". The defendant said "okay". Thereafter she requested him to take off the shoes he was wearing and return them to her on the basis she had paid for them. He agreed and did so. Later that day the defendant and her mother attended the plaintiff's parents' property and took away a wallet she had given him during the relationship, wedding clothes her mother had purchased for the plaintiff as a gift, and two items that her parents had purchased for the plaintiff's parents and given to them as gifts. A solicitor's demand to return the three rings and the five gifts was refused. 6. The plaintiff sues for the engagement ring on the basis that it was a conditional gift, that is a gift conditional on marriage proceeding, and as the marriage did not proceed the gift must be returned. He sues for return of the wedding rings on the basis they are his property and the defendant was a bailee. He sues for return of the five gifts (and if necessary, for the return of the engagement ring and wedding bands) on the basis of an agreement constituted by the words "everything that belongs to each party will be returned to each party" and conduct including the conduct in relation to the shoes and potentially the removal of the gift items by the defendant and her mother. 7. The plaintiff also sued for the $1,640 in the joint account on the basis it is his money, and the $1,000 paid by the furniture shop to the defendant on the basis that is his money too. The defendant denies that and also relied on a set off because she said she was about $5,000 out of pocket from the dealings with the joint account. The plaintiff responds to that reply by pointing out that he is $10,000 out of pocket in the dealings on the joint account.