B, KM v B, JP - [2014] SADC 19

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
B, KM v B, JP
[2014] SADC 19
Judgment of The Honourable Justice Bampton
11 February 2014
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - GENERALLY
Plaintiff and defendant in a de facto relationship – application by plaintiff pursuant to s 9 of the Domestic Partners Property Act 1996 (SA) seeking orders pursuant to s 10 of that Act as to the division of the property of the parties – the plaintiff also seeks an extension of time within which to bring her application.
Held: extension of time granted – the plaintiff and defendant were domestic partners within the meaning of the Act – the criteria for the making of an application for the division of property satisfied – order for the division of property in favour of the plaintiff on a 60:40 basis.
Domestic Partners Property Act 1996 (SA) s 3, s 9, s 10, s 11, referred to.
Hogg v Roberts (2003) 87 SASR 248, discussed.
Parker v Parker (1993) 16 Fam LR 863, considered.

B, KM v B, JP
[2014] SADC 19
Civil
BAMPTON J.
Introduction

The plaintiff and the defendant entered into a domestic partnership in the United Kingdom in May 1999. The couple immigrated to Australia in May 2006 and have resided in South Australia since that time.
The couple continued to live together until they separated in April 2010. (During his evidence the defendant asserted that the date of separation was January 2010, however in his defence he admits that the date of separation was 4 April 2010). Property was brought into the relationship and property was acquired during the course of the relationship. There are no children of the relationship.
The plaintiff now brings this application for division of property pursuant to section 9 of the Domestic Partners Property Act 1996 (SA) (the Act).
Application for extension of time
The plaintiff seeks an extension of time within which to make the application. The defendant does not oppose the plaintiff being granted an extension of time to institute the application. Accordingly, I am satisfied that the extension of time to institute the application to 5 December 2012 is necessary to avoid serious injustice to the plaintiff.[1]
[1] Domestic Partners Property Act 1996 (SA), s 9(3).
Section 3 of the Act
The defendant also does not oppose the making of a declaration that he and the plaintiff were domestic partners within the meaning of s 3 of the Act. I make a declaration to that effect. I find the domestic partnership within the meaning of the Act commenced in May 1999 and continued until April 2010.
Application for division of property
The criteria for the making of an application for the division of property prescribed in s 9 of the Act have been satisfied. The plaintiff seeks an order that the property be divided 70/30 in her favour. The defendant seeks a division of 50/50.
I now turn to the application of s 10 of the Act and the power to make orders for division of property.
Pursuant to Section 10 of the Act I may make such orders as I consider necessary to divide between the plaintiff and the defendant the property of either or both of them in a way that is just and equitable.
Section 10 of the Act provides:
(1)On an application for the division of property after the end of a domestic partnership, the court may make such orders as it considers necessary to divide between the domestic partners the property of either or both partners in a way that is just and equitable.
(2)For example, the court may make orders for –
(a)     the transfer of property from one domestic partner to the other; or
(b)     the sale of property and the division of the net proceeds between the domestic partners in proportions decided by the court; or
(c)     the payment by one domestic partner of a lump sum to the other.
Section 11 of the Act details the matters that I must take into account in deciding whether to make an order for division of property.
Section 11 provides:
(1)In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court –
(a)     must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to –
(i)the acquisition, conservation or improvement of property of either or both partners; or
(ii)the financial resources of either or both partners; and
(b)     must consider the contributions (including homemaking or parenting contributions) made by either of the domestic partners to the other partner or to children of the partners or either of them; and
(c)     must have regard to the terms of any relevant domestic partnership agreement; and
(d)     may have regard to other relevant matters.
In Hogg v Roberts,[2] Doyle CJ (with whom Perry and Gray JJ agreed) set out the process of reasoning to be undertaken by a court when determining the division of property when a domestic partnership ends:[3]
[2] (2003) 87 SASR 248.
[3] Ibid, [11]-[18].
My understanding of the Act is that the requirement to make an order that is ‘just and equitable’ does not give rise to a general and unfettered discretion. First of all, the court is dividing property, not settling all outstanding financial issues as between the partners. Secondly, s11(1) indicates that the contributions referred to in that provision are important considerations in deciding what is just and equitable. The initial and primary focus must be on the property in question, contributions to that property, contributions to financial resources and then contributions by one party to the other and to the children.
However, the obligation under s11(1)(d) to have regard “to other relevant matters” means that contributions are not the only matter for consideration. It is to be noted that the court must have regard to “relevant matters”. I think that must mean matters relevant to a just and equitable division of property. The provision is not as wide as, for example, a direction to have regard to such matters as the court sees fit.
Bearing that in mind, I consider that it is not the role of the court to use the division of property to remedy any justified grievances that one party may have against the other, or to compensate one party for disappointed or unfulfilled expectations. The focus appears to me to be on a just and equitable distribution of property, after considering primarily contributions of the kind identified by s 11 (1) of the Act. The task of the court is a narrower one than the task of the court under s 79 of the Family Law Act 1975 (Cth). The relevant considerations are more narrowly confined. Matters that are likely to be relevant are the length of the relationship and the immediate needs of the parties. I say “immediate needs” because the court’s focus is on the division of property. In deciding what is “just and equitable”, the needs of the parties at that time will be relevant. However, the court is not dividing property with a view to providing, for example, for the continuing maintenance of the parties, or taking into account their future financial prospects.
Other matters may be relevant. It would be dangerous to try to draw a line here in the abstract. I go no further than to say that the focus is on the just and equitable division of property, and not on an order that is fair having regard to all the circumstances surrounding, and everything that happened during, a relationship.
I agree with the observations made in decisions in other states that the court is not concerned with attributing fault for the breakdown of the relationship; that contributions as home maker and parent are not to be treated as inferior to material or financial contributions, they are to be taken into account in a substantial way; that contributions of a non-material kind are to be assessed in a broad way, rather than by reference to the rate of remuneration payable to commercial providers of such services, and that there is no reason to approach the matter on the basis of an assumption that an equal division is appropriate, unless there is good reason to depart from that position. I draw those propositions from the reasons of Gleeson CJ and McLelland CJ in Equity in Evans v Marmont (1997) 42 NSWLR 70 at 74. Although the legislation under consideration there was relevantly different, I consider that these basic principles apply to the Act.
In Parker v Parker (1993) 16 Fam LR 863 Young J suggested a four stage approach which will often be helpful. The four stages he suggested (at 870) are:
“(i)    to identify and value the assets of the parties;
(ii)    to determine whether any, and if so what contributions of type A or type B had been made by each partner;
(iii)   to determine whether in the circumstances the contributions of the applicant had already been sufficiently recognised and compensated for;
(iv)   to make the appropriate adjustment.”
Once again, he was concerned with different legislation, but the process he suggested is likely to prove helpful under the Act. However, I emphasise that this is simply one approach. In some cases a broader approach will work better. There is no need to take what might be called a narrow approach involving a careful tracking of income and expenditure, contributions made and benefits received. The legislation requires a reasonably broad and practical approach.
Between stages (iii) and (iv) it will be necessary to consider whether there are “other relevant matters” to be considered. It will also be necessary to bear in mind that the object is to divide property in a “way that is just and equitable”. As I have said, I do not treat that expression as opening up all aspects of the relationship, but it appears to me that the matters identified in s 11 (1) of the Act do not alone dictate the order to be made under s 10 (1). They are matters to be considered, they are important, but they will not necessarily be decisive.
Following the reasoning in Hogg v Roberts, in determining the appropriate order for division of the property I not required to embark upon an accountancy exercise carefully tracking income, expenditure, contributions made and benefits received. The Act requires a “reasonably broad and practical approach”.
In determining this matter I have therefore borne in mind that a “reasonably broad and practical approach” is desirable and that the object of the Act is to divide property in a “way that is just and equitable”.
Overview of the evidence
The plaintiff and the defendant were both self-represented and each gave evidence. As the plaintiff is a finance manager she had a more precise knowledge of financial matters. Indeed the defendant acknowledged she is more knowledgeable than he in such matters. I accept that they were both honest and truthful on most topics. I have difficulty accepting the defendant’s evidence about his lack of knowledge of the value of his endowment fund and savings in the United Kingdom. He pleaded in his defence that he does not know the value of these assets. He said in evidence that he has no documentation as he left the home he shared with the plaintiff with only his clothing. Either he has made no effort to ascertain the value or he has deliberately failed to disclose the true value of these assets. If the assets were worthless it would have buttressed his case to produce documentary evidence to support his oral assertions.
The plaintiff asserts that she is entitled to be reimbursed for business expenses put on her MasterCard, a Sydney Harbour Bridge walk, a satellite navigation device she bought for the defendant and an invoice she rendered following separation for unpaid work she alleges she undertook for the automotive business. Regrettably there is a paucity of documentary evidence in relation to these matters and indeed all assets and liabilities of the relationship. Neither party filed a list of documents. Some documentation was forwarded to the court prior to trial by the parties. I can only have regard to the documentation that was tendered during the trial.
Had the parties been legally represented more detailed documentary evidence would have most likely been available. Be that as it may, the parties need this matter resolved without further delay.
The defendant said in evidence that as long as he received some of the equity in the Noarlunga Downs property[4] he would accept the plaintiff retaining the property. However, I am not sure that he understands that once all the assets and liabilities have been taken into account there will be very little net assets available for division.
[4] I address this property in more detail at [38]-[51].
Accordingly, I have decided, having heard the parties’ evidence, that this is the one of the matters the Court referred to in Hogg v Roberts[5] where a broader approach will be better than the approach suggested by the Court in Parker v Parker.[6]
[5] (2003) 87 SASR 248.
[6] (1993) 16 Fam LR 863.
There was disputed evidence given by both parties about allegations of property damage, assault and criminal proceedings associated with alleged assault. As blame or fault for the breakdown of the domestic partnership is irrelevant to the exercise of my discretion under s 11 of the Act I have not taken into account, and I ignore for the purposes of my decision, the evidence given by the parties with respect to these matters.
There was also contested evidence about the disposal of assets following the sale of the plaintiff’s property in the United Kingdom and the value of the defendant’s United Kingdom endowment fund and savings. I do not have sufficient oral and current documentary evidence before me to make findings about these disputed topics. I have determined not to take these matters into consideration as I am satisfied the just and equitable division of property should only include the two residential properties, the automotive business, the four residential loans and a $3,500 MasterCard debt all acquired by the parties following their move to South Australia.
I have done this taking into account the fact that prior to the leaving the United Kingdom the parties agreed (albeit reluctantly on the part of the plaintiff) to split the proceeds of the sale of the defendant’s property in the defendant’s favour on a 60/40 basis and that they agreed and did share the purchase of the properties they bought in South Australia on a 50/50 basis.
History of the relationship
The plaintiff was born in the United Kingdom on 25 March 1963. The defendant was born on 9 May 1970 in the United Kingdom.
The couple met in the United Kingdom in about January 1999 when the plaintiff was working in the accounts department at a Mazda dealership and the defendant was working as a mechanic. They commenced living together in May 1999. The plaintiff owned a residential property situated in Rothwell in the United Kingdom which was subject to a mortgage (the Rothwell property).
At the commencement of the relationship the defendant moved into the Rothwell property and the couple resided there for approximately one year, during which time it is alleged by the plaintiff that the defendant did not contribute in any manner towards mortgage repayments or household costs.
Whilst living at the Rothwell property the plaintiff said that the defendant received rent money in respect of his property situated in Northampton (the Northampton property).
The plaintiff said she moved into the Northampton property and helped the defendant remortgage that property for £55,000 (being 95 per cent of the property value at the time).
The plaintiff said the defendant paid out his ex-girlfriend (who was on the mortgage), and kept the difference.
In May 2000, the plaintiff sold the Rothwell property for the sum of £83,000. After discharging the mortgage and meeting all the usual conveyancing, she received the sum of £23,000.
The plaintiff said that she applied the proceeds from the sale of the Rothwell property towards improving the Northampton property. Further, the plaintiff said she met the costs of groceries and ordinary household expenses for and on behalf of herself and the defendant.
In 2006, the defendant sold the Northampton property and realised the sum of £119,000. The plaintiff said that the defendant would not divide the proceeds of the sale equally. The defendant accepted a 60/40 division of the property in his favour and had a solicitor draw up an agreement. The defendant retained the sum of £39,703.15 from the proceeds of the sale and the plaintiff retained the sum of £26,468.00.
The defendant told me that at the time the relationship commenced he moved into the plaintiff’s property and rented out his property. Thereafter, they moved into his property where he paid the mortgage, rates and some of the bills and the plaintiff paid for food and other “bits and bobs along the way”. The defendant considered the contributions equalled themselves out and that it was “pretty much” a 50/50 contribution.
The defendant said that they both made equal financial and non-financial contributions to the acquisition, conservation and improvement of the property of the parties and their financial resources. He said that in addition to the Northampton property, furniture and effects, and a Mazda 323, he owned extensive automotive tools and equipment when the domestic partnership started. He denies that he did not financially contribute in any manner towards the mortgage of the Rothwell property. He said that, between February 1999 and May 2000, he financially contributed to household bills, other ordinary household costs and all entertainment and leisure costs of the parties.
The defendant said that at the time he and the plaintiff decided to move to Australia he put his house on the market and it sold quickly for £119,000. He said he owed about £56,000 on his mortgage. He said that he and the plaintiff fought about money and came to an agreement that the proceeds of sale would be split on a 60/40 basis in his favour.
The defendant said that his concern about the sharing of the proceeds of sale stemmed from a discussion he had with the plaintiff about what they would do in terms of pooling their money from the sale of the two United Kingdom properties to ensure that they would have a house deposit when they came to Australia. The defendant said that that did not ever really happen because the plaintiff was generous with her daughters with respect to the money she received from the sale of her property.
The couple move to South Australia
The couple moved to South Australia in May 2006 and continued to live together as domestic partners.
It was the plaintiff’s evidence that she always earned more than the defendant. The plaintiff worked as a finance manager and the defendant worked as a mechanic.
Noarlunga Downs property
On 13 November 2006, the parties purchased a property at Noarlunga Downs (the Noarlunga Downs property) for the sum of $350,000. They each contributed $8,750 towards the property, being five per cent of the total purchase price. The parties were also each eligible for the First Home Owners Grant in the sum of $7,000. Finance was obtained from Bank SA for the balance of the purchase price. The property was subject to a mortgage in favour of Bank SA.
The defendant said that because of the controversy over finances when they moved from the United Kingdom, he and the plaintiff agreed that they should contribute to purchases thereafter on a 50/50 basis. He said that they bought every considerable thing for their home to make it nice, happy and habitable and that it was “all good”.

The plaintiff and defendant agreed that they had separate accounts and contributed 50/50 to a joint account to pay the mortgage, and other outgoings up until separation.
The plaintiff said her income as an accountant exceeded the defendant’s income during the relationship and, as a consequence, she said she has made a greater financial contribution to the acquisition, conservation and improvement of jointly owned property of the parties.
The plaintiff also said that during the relationship she attended to the domestic requirements of the household, including purchasing food and groceries, preparing meals, cleaning, washing, hanging out clothes, caring for pets, ironing, making beds, household cleaning, vacuuming, attending to the garden and cleaning windows.
The plaintiff said that she also paid from her bank account and used her credit card for household expenses, including water, gas, telephone, birthday presents, clothing for the defendant and his family, groceries, costs of entertaining and dining out other expenses and short holidays.
From separation in April 2010 until 15 July 2011, the plaintiff lived in the Noarlunga Downs property, meeting all expenses relating to that property. The defendant moved out following the separation and, initially, rented with a friend before moving into a rental property.
On 15 July 2011, the plaintiff said that she had no option but to vacate the Noarlunga Downs property as she could no longer afford to meet expenses in relation to that property as well as a rental property at Whyalla without contribution by the defendant.[7] The plaintiff said that when she left the Noarlunga Downs property in July 2011 she was $4,000 behind in payments and it took her eight months to get the mortgage up to date.
[7] In March 2008, the plaintiff and the defendant used the Noarlunga Downs property as security to purchase an investment property in Whyalla (the Whyalla property). The Whyalla property was purchased for $140,000. I address the Whyalla property in more detail at [52]-[64].
The Noarlunga Downs property was subsequently tenanted. The plaintiff said that the defendant would not agree to rent the Noarlunga Downs property and would not agree to contribute to expenses. The plaintiff said that she was left no option but to rent the property and manage it herself, otherwise it would have been repossessed. The tenant pays $390 per week, which is applied directly to the reduction of the mortgage. The plaintiff said that she is responsible for the Noarlunga Downs property mortgage being up to date and that she has continued to meet payments of expenses in relation to the Noarlunga Downs property without contribution by the defendant.
The defendant said that in his assessment the Noarlunga Downs property was worth $430,000 at its lowest. That assessment was based on a valuation he received from McKibbin Real Estate dated February 2013.[8] The plaintiff’s evidence was that the Noarlunga Downs property had been on the market for around the $430,000 or $450,000 mark and not one offer was received. The plaintiff’s valuation of the Noarlunga Downs property is $410,000 based on the council valuation in the council rates notice.[9]
[8] Exhibit D1.
[9] Exhibit P1.
The defendant said that following the separation he received legal advice that he did not have to contribute towards the Noarlunga Downs property mortgage because he was paying money towards his own rental property. The defendant said that for a while he was unable to pay anything because he had no funds.
The defendant agreed that the plaintiff has paid most of the Noarlunga Downs mortgage since the separation and that she has been managing the property whilst it has been rented.[10]
[10] T96.
The plaintiff, by reference to Exhibit P2, said that as at 13 July 2013 the outstanding loan amount for the Noarlunga Downs property was $329,616.16.
As stated previously, I have taken a board brush approach to the valuation because of the paucity of financial information. I assign a value of $420,000 to the Noarlunga Downs property which is a valuation between the council valuation ($410,000) and the lower range of the McKibbin Real Estate valuation ($430,000).
Whyalla Property
In March 2008, the parties used the Noarlunga Downs property as security and purchased an investment property at Whyalla Norrie (the Whyalla property) for $140,000. The parties took out a loan of $20,000 to cover the purchase cost from the Noarlunga Downs property with Bank SA. They used $10,000 for the deposit and finance was obtained from Bank SA for the balance of $130,000. The remaining $10,000 was used for legal costs and stamp duty.
The Whyalla property is currently tenanted and rent income of $185 per week is received.
The defendant said he had been told by a real estate agent that they could probably get about $130,000 for the Whyalla property and he disputes the value the plaintiff puts on it of $100,000. The defendant agreed that it had been put on the market for $150,000 and he said that in his view it was not selling because it was filthy and “probably overpriced”.
Following separation, the plaintiff said that she attended to payment of most expenses in relation to the Whyalla property without contribution by the defendant. In particular she met payment of council rates, land tax and SA Water as well as the shortfall in the mortgage after the application of rental income, in the amount of $400 per month. The plaintiff also said she pays the annual fee on mortgages of $395.
In April 2011, the plaintiff issued proceedings in the Christies Beach Magistrates Court for recovery of expenses she had paid without contribution from the defendant. On 12 January 2012, the plaintiff received judgment in the sum of $4,128.52, including costs, and the defendant was ordered to pay $100 per fortnight with the first payment due on 16 January 2012.
The defendant agreed that he was taken to small claims court by the plaintiff to recoup money that he should have paid for the Whyalla property and that he ended up being ordered to pay the plaintiff $4,000 in instalments.
The defendant disputed the plaintiff’s evidence that there were times when he did not pay and that there were gaps in current payments. He said that whilst these proceedings have been on foot there have probably been a couple of occasions when he has not paid and that payments have been irregular because he is self-employed. The defendant said that he knows that he is behind with the rates and bills for the Whyalla property because he has not been able to meet the payments on a regular basis. He admitted that he had suggested to the Whyalla Council that the plaintiff be included on the rates notice because the council was chasing him for payment.
The defendant said that he pays $300 per month towards the Whyalla property, the landlords insurance and the two loans, and the plaintiff pays for the Noarlunga Downs property with the rental money she receives from the tenant.
The defendant said that if the plaintiff wanted to keep the Noarlunga Downs and Whyalla properties he was happy for her to do so, but if there was any equity in Noarlunga Downs, he would want 50 per cent of the equity. He said whilst Whyalla might be worth money down the track, they would be lucky to get what they paid for it now. The defendant agreed that the liability for the four Bank SA residential loans would have to be divided between him and the plaintiff.
By reference to Exhibit P2, the Bank SA residential loan for the Whyalla property was $125,623.14 as at 13 July 2013.
As with the Noarlunga Downs property it is impossible to be in any way accurate about the valuation of the Whyalla property. Site valuation according to the Council rate notice is $55,000.[11] According to the evidence of the parties and the inspection report, the property is in a state of disrepair and tenanted with the “tenant from hell”.
[11] Exhibit P3.
The plaintiff said the Whyalla property is worth $100,000. The defendant said that he had been told by a “real estate lady …that things aren’t as buoyant as they used to be…. you’d probably get about $130,000 for it”.[12]
[12] T89.
For the purposes of the division of property I assign a valuation of $120,000 to the Whyalla property valuation, noting that it was purchased for $140,000 in 2008 and is in a state of disrepair.
The automotive business
In March 2009 the parties commenced a small automotive business. The plaintiff alleges that the defendant begged her to agree to obtain the $35,000 required from both properties to start the automotive business. However, the plaintiff alleges they could only raise $25,000 at the time as the defendant still had over £20,000 in the United Kingdom.
The defendant admitted that he had money in the United Kingdom but did not know the quantum of such and did not agree to put that money toward the business.
In order to meet establishment costs of the automotive business, the parties obtained finance from Bank SA in February 2009 in the amount of $25,000. A sum of $15,000 was deposited into the automotive business account as capital to start the automotive business.
The plaintiff said that although the automotive business was jointly owned, it was agreed that the defendant would work the business and all of the finances would be handled by her. The plaintiff said she took time off paid work in order to set up the automotive business and to do the accounts and to show the defendant how to invoice customers. She said that this reduced her earnings as she was doing unpaid work to enable the setup of the automotive business.
The plaintiff alleges that in July 2010, and thereafter, the defendant used money from the automotive business and set himself up as a sole trader, using all plant, equipment and the client base without her consent.
The defendant has continued to operate the automotive business during the period post‑separation.
The defendant said that the automotive business was established in joint names and that the plaintiff set up the MYOB system on the computer, showed him how to raise an invoice and from time to time she would come to the business and input data, pay accounts and tell him who should and should not be paid, “that sort of thing”.
The defendant disputed that the company was liable to pay the $10,000 invoice that the plaintiff had rendered following separation for the services she had provided the company during the first year of its operation. The defendant maintained that he and the plaintiff both took money from the business (as he was working and she was doing the books) in order to pay the mortgage and other expenses. The defendant agreed in part that the plaintiff took time off from her work and put a considerable amount of effort into the business, but he maintains she had seven or eight jobs in the time he was with her and she flitted from job to job. The defendant disputed that the plaintiff could have earned more working for other organisations because she changed jobs with such frequency. The defendant admitted that he was “not that flash with paperwork”.
There is no expert valuation of the automotive business. The plaintiff valued it at $40,000, and said she has a purchaser. The plaintiff said she sees potential to make money out of the business but “[the defendant] treated it as more of like he was a mechanic doing casual jobs and backhanders”.[13] The plaintiff agreed that the automotive business was not making the profit she considers it could make.
[13] T46.
The defendant said in evidence the automotive business was worth “zero”. In his defence he pleads it is worth $20,000.
The plaintiff said her work for the automotive business, worth $10,000, is for one year of doing books without being paid.
On about 21 or 22 July 2010 the defendant said that he obtained his own ABN number and commenced trading in his own right.
I assign a value of $20,000 to the automotive business which includes the value of tools, equipment and goodwill.
Superannuation, endowment fund and savings
The defendant said that he thinks he has £300 in a bank account in the United Kingdom and a United Kingdom pension, the value of which he does not know. The defendant pleaded in his defence he had £7,000 held in accounts in his name at the end of the relationship. The defendant’s Colonial First Super Fund was valued at around $11,700 in 2012.[14] The defendant said that he has not contributed to the superannuation fund for some time; as a consequence its value has gone backwards.
[14] Exhibit D3.
The defendant said he had no idea what his United Kingdom endowment fund was worth. The plaintiff maintained the endowment fund was established in the United Kingdom when she helped the defendant remortgage his home. The plaintiff said the defendant paid £45 a month into the fund and that in 2016 it would be worth £39,000.
The plaintiff said her HESTA superannuation fund was worth $14,000 at end of 2012, but will be worth a lot more now as she is now earning $72,000 per annum.
I do not include the parties’ superannuation, endowment funds or savings in the asset pool available for distribution.
Motor vehicles
Whilst the parties gave evidence of the motor vehicles that they acquired upon their arrival to South Australia, I received no evidence regarding their current motor vehicles. I therefore do not take motor vehicles into account.
MasterCard
The plaintiff gave evidence that her MasterCard was used by the automotive business. The defendant does not accept that the amount claimed by the plaintiff of $10,000 is attributable to the business. The defendant said, referring to a Gold MasterCard statement,[15] that as at 8 July 2010 the MasterCard debt was around $3,500. I will include the $3,500 MasterCard debt as a liability.
[15] Exhibit D2.
Bank SA residential loans
The best evidence available regarding liabilities to be accounted for is the computer printout headed “Bank SA”.[16] As at 13 July 2013:
·the residential loans against Noarlunga Downs were:
-       Account S514008264100 – $329,616.16
-       Account S514387191000 – $23,712.24
·the residential loans against the Whyalla property were:
-       Account S514382893800 – $125,623.14
-       Account S514381825400 – $19,402.85
[16] Exhibit P2.
The total Bank SA liabilities as at 13 July 2013 were $498,354.39. I round this figure up to $500,000. I add to this sum the MasterCard debt of $3,500.
Conclusion – Division of property
I have taken, as of necessity due to the paucity of financial evidence, the absence of independent valuations of the properties and the business, a reasonably broad and practical approach. I have, following Hogg v Roberts,[17] focused on arriving at “the just and equitable division of property”, and not on an order that is fair having regard to all the circumstances surrounding and everything that happened during the relationship.
[17] (2003) 87 SASR 248.
In arriving at my decision I have taken into account the contributions of the parties by way of assets, income, improvements to the properties, property maintenance and management, and homemaking.
The parties also gave evidence about the division of property with respect to the sale of the defendant’s home prior to moving to Australia. It is apparent that the division of the proceeds of the sale of that property was a point of contention between the parties and there was a resulting agreement whereby the defendant retained 60 per cent of the proceeds of that sale and the plaintiff retained 40 per cent. I find that there was a subsequent agreement upon arrival in South Australia that everything bought for the joint benefit for the couple would be on a 50/50 basis; that is evidenced by the fact that the deposit for the Noarlunga Downs property, the Whyalla property and all outgoings were on a 50/50 basis. I find this arrangement continued until the relationship deteriorated.
Following separation the plaintiff remained in the Noarlunga Downs property and she became responsible for, inter alia, mortgage repayments in respect of that property. The plaintiff did not pay the defendant any rent for that sole occupation. For a period the defendant was paying what would appear to be a nominal rent living with a friend. As the plaintiff met all expenses related to the property, I find that there is no liability to account for rent during that period of occupation.
As I have no evidence by way of expert valuations (other than council valuations) with respect to the Noarlunga Downs and Whyalla properties, the automotive business, the United Kingdom endowment and savings funds, I can only adopt a reasonably broad and practical approach to the division of property.
At the time of trial, the defendant was carrying on the automotive business and the plaintiff was working in her occupation as a financial manager.
I find that during the period the parties lived together in Australia and since separation the financial contributions and non-financial contributions of the plaintiff outweighed those made by the defendant.
Therefore, having regard to the evidence of the parties and the findings I have made, I find that a fair and equitable division of property is a 60/40 division in the plaintiff’s favour of the net assets once liabilities are accounted for.
There is no doubt that as the defendant is a competent mechanic it is appropriate that he retains the automotive business, and any tools and equipment associated with his trade as a mechanic.
It is appropriate that the plaintiff and defendant retain any motor vehicles, savings, superannuation and endowments in their own name.
As I have insufficient evidence about the trip to Sydney, the bridge walk, the satellite navigation and other sundry items, I am unable to make any finding about the value of these items.
The plaintiff expressed a desire to keep the Noarlunga Downs property and a preparedness to take on the encumbered Whyalla property. The defendant said in his evidence that if the plaintiff wanted to keep the properties he was happy for her to do so, but if there was any equity in the Noarlunga Downs property, he would want 50 per cent of the equity. As I have already stated, the debt-laden Whyalla property and the lack of disclosure about the United Kingdom endowment fund results in there being very little by way of net assets.
I have assigned a value of $420,000 to the Noarlunga Downs property, a value of $120,000 to the Whyalla property, and a value of $20,000 to the automotive business. Hence the assets total value, taking a reasonably broad and practical approach, is $560,000. A rough estimate of the net assets, once the loan liabilities of $503,500 are accounted for is $56,500. A 60/40 division of this sum results in the plaintiff notionally receiving $33,900 and the defendant $22,600.
I am of the view that a fair and equitable distribution is for the defendant to transfer his interest in both the Noarlunga Downs and the Whyalla properties to the plaintiff. All four Bank SA residential loans are to be transferred wholly to the plaintiff and the defendant is to be released from all joint financial obligations with respect to these properties. Whilst it was the plaintiff’s evidence that the Bank SA loan for $25,000 was a business loan it is clear the monies were loaned as a residential loan with Noarlunga Downs as security.
The defendant is to retain the automotive business, to which I have assigned a value of $20,000 and release the plaintiff from any and all financial obligations with respect to the business. By retaining the automotive business the defendant’s entitlement to the net assets reduces to $2,600.
I order that the plaintiff have her costs of the action fixed at $2,600 which is far less than she would receive on taxation of her costs, noting that the filing fee alone was $1,100. The effect of this order is that once the following orders are carried into effect the plaintiff, who will carry the burden of the four residential loans, is discharged from any payment to the defendant.
Orders

The orders are:
1.The time for bringing these proceedings is extended to 5 December 2012.
2.I make a declaration that [the plaintiff] and [the defendant] were domestic partners within the meaning of the Act.
3.[The defendant] will retain the automotive business and all tools and equipment in his possession.
4.Within 28 days of the date of this judgment, [the defendant] must do all things necessary to ensure that [the plaintiff] is released from any and all joint financial arrangements with him with respect to the automotive business.
5.Within 28 days of the date of this judgment, [the plaintiff] must transfer any shares in the automotive business in her name to [the defendant] or his nominee.
6.Within 28 days of the date of this judgment [the defendant] must transfer to [the plaintiff] all his estate and interest both at law and in equity in the land comprised and described in:
(i)     Certificate of Title Register Book Volume 5440 Folio 947, also known as [the Noarlunga Downs property]; and
(ii)    Certificate of Title Register Book Volume 5402 Folio 623, also known as [the Whyalla property].
to the intent that [the plaintiff] shall henceforth be entitled to the land for the sole use and benefit absolutely of [the plaintiff] subject however to such encumbrances liens and interests as are now registered on the Certificates of Title.
7.The necessary costs and disbursements of the transfer of land described in Order 6 hereof shall be borne by [the plaintiff].
8.Within 28 days of the date of this judgment, [the plaintiff] shall arrange, at her expense, to:
(i)     assume sole liability for the loan secured by registered mortgage to Bank SA over the land comprised and described in Certificate of Title Register Book Volume 5440 Folio 947 so that [the defendant] is released from all and any liability in respect of that loan and mortgage; and
(ii)    assume sole liability for any other loan or charge secured against the loan comprised and described in Certificate of Title Register Book Volume 5540 Folio 947; and
(iii)   assume sole liability for the loan secured by registered mortgage to Bank SA over the land comprised and described in Certificate of Title Register Book Volume 5402 Folio 623 so that [the defendant] is released from all any liability in respect of that loan and mortgage; and
(iv)   assume sole liability for any other loan or charge secured against the loan comprised and described in Certificate of Title Register Book Volume 5402 Folio 623.
9.If [the defendant] refuses or neglects to execute the memorandums of transfer in registrable form under the provisions of the Real Property Act 1886 (SA) of his estate and interest in the land described in Order 6 above to [the plaintiff] within seven days after the transfer shall have been tended to him by or on behalf of [the plaintiff], a Master of the District Court be and is hereby appointed to execute those transfers for and on behalf of [the defendant].
10.[The plaintiff] and [the defendant] shall retain all of the property currently in their name or possession including entitlements to superannuation, savings accounts, endowment funds, motor vehicles, furniture and effects.
11.These orders constitute the full and final division of the property of the domestic partnership between the parties.
12.[The plaintiff] to have her costs of the action fixed at $2,600.