''Knapp v Knapp'',. is the

possession Possession may refer to: Law * Dependent territory, an area of land over which another country exercises sovereignty, but which does not have the full right of participation in that country's governance * Drug possession, a crime * Ownership * ...

by intention of donor case, decided in the

Supreme Court of South Australia The Supreme Court of South Australia is the superior court of the Australian state of South Australia. The Supreme Court is the highest South Australian court in the Australian court hierarchy. It has unlimited jurisdiction within the state in ...

Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...

History

The husband, the

appellant In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...

, was the owner of a

motor car A car or automobile is a motor vehicle with wheels. Most definitions of ''cars'' say that they run primarily on roads, seat one to eight people, have four wheels, and mainly transport people instead of goods. The year 1886 is regarded as t ...

. He said to his wife, the

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisdic ...

, that he would give it to her as a

birthday A birthday is the anniversary of the birth of a person, or figuratively of an institution. Birthdays of people are celebrated in numerous cultures, often with birthday gifts, birthday cards, a birthday party, or a rite of passage. Many relig ...

present. The car was registered in the husband's name, and subsequently re-registered in his name. The husband received a

petrol Gasoline (; ) or petrol (; ) (see ) is a transparent, petroleum-derived flammable liquid that is used primarily as a fuel in most spark-ignited internal combustion engines (also known as petrol engines). It consists mostly of organic co ...

allowance. The wife had custody of the car but used her husband’s petrol allowance. The wife made an action for the car and was successful. The husband appealed to the Supreme Court of South Australia. The case was heard by Mayo J.

Decision

The Court, Mayo J, applied the four elements of

gifting A gift or a present is an item given to someone without the expectation of payment or anything in return. An item is not a gift if that item is already owned by the one to whom it is given. Although gift-giving might involve an expectation ...

(from ''Handshin v Hackett'',. where no co-ownership is envisaged. 1. Intention by donor to give absolute right to exclusive enjoyment. The car was registered in the husband's name, not the wife's, so he could get the petrol allowance. Therefore, he is the owner within the meaning of the Road Traffic Act. That which is lawful is preferred to that which is not. Additionally, the

insurance Insurance is a means of protection from financial loss in which, in exchange for a fee, a party agrees to compensate another party in the event of a certain loss, damage, or injury. It is a form of risk management, primarily used to hedge ...

was in his name, not her name. 2. The donee must accept the gift by overt conduct. There is no evidence that the car was passed from the husband to the wife as a gift. 3. The donee acquires the gift in a timeframe that meets the donors intentions. The wife did not seem to have right of use in the timeframe under discussion, and so there was no delivery to her. 4. To be a gift there will be an absence of valuable consideration, which distinguishes it from sale or barter. The husband is the owner of the motor car by purchase. He does not appear to have given it to his wife. In conclusion, the judgment of the local court was set aside. The order was against the wife, and the husband recovered the car.

References

Pearson, Gail., Commercial Law: Commentary and Materials, 2nd Ed, Thompson Legal, 2004

External links

South Australia Courts
{{DEFAULTSORT:Knapp V Knapp South Australia case law 1945 in Australian law 1945 in case law