BKF v DTTN - [2009] SADC 91

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BKF v DTTN & ANOR
[2009] SADC 91
Judgment of His Honour Judge Nicholson
28 August 2009
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - RELATIONSHIP
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - RELEVANT CONSIDERATIONS
Plaintiff asserted that he and the first defendant were parties to a de facto relationship for a period exceeding 3 years. First defendant disputed this and maintained that the plaintiff was in a marriage relationship with her sister. Held: a de facto relationship had subsisted for approximately four and a half years. Consideration given to a just and equitable distribution of property. Held, inter alia: plaintiff entitled to a lump sum payment of $30,000. Plaintiff's application filed out of time. Held: extension of time granted.
De Facto Relationships Act 1996 ss 3, 9, 10, 11, 14 and 15; Stamp Duties Act 1923 s22; District Court Act s39(3); District Court Rule (1987) 11.06, referred to.
D v McA Supreme Court of New South Wales (Equity Division) 27 June 1986 (Unreported); Karpathiou v Clemente [2008] SASC 316; Hogg v Roberts (2003) 87 SASR 248; Parker v Parker 16 Fam LR 863; Sharp v Wakefield [1891] AC 173; Jones v Dunkel (1959) 101 CLR 298; Payne v Parker [1976] 1 NSWLR 191, considered.

BKF v DTTN & ANOR
[2009] SADC 91
Introduction

The plaintiff, BF, claims that he and the first defendant, DN, were parties to a de facto relationship, within the meaning of that term according to s3 of the former De Facto Relationships Act 1996 (“the Act”),[1] during the period November 1997 to April 2004.[2] The plaintiff seeks, against the first defendant, various orders relating to the property of the parties. However, in this respect, for reasons which I will later explain, the dispute between the plaintiff and the first defendant can be reduced to whether or not the plaintiff should be entitled to a lump sum payment in lieu of a share in a residential property at Croydon Park purchased in the name of the first defendant during the period of the putative de facto relationship.
[1] The Act, passed in 1996, was called the De Facto Relationships Act. Its name was changed to the Domestic Partners Property Act 1996 as from 1 June 2007. Some but not all of the sections of the Act were amended at the time that its name was changed. The dispute between the parties in this matter falls to be determined pursuant to the provisions of the De Facto Relationships Act 1996 as it stood prior to the 2007 amendments.
[2] See paragraphs 15, 42 and 43 of the Second Further Amended Statement of Claim filed 10 August 2007.
The plaintiff also seeks orders against the second defendant, MHL, who is the first defendant’s daughter. In essence, and in order to secure his rights and remedies as against the first defendant, the plaintiff seeks, as against the second defendant, orders designed to reverse the legal effect of a transfer by the first defendant into the second defendant’s name of the title to the Croydon Park property. I will come to the detail of the orders sought against both the first defendant and the second defendant later in these reasons.
The first defendant denies that the parties were in a de facto relationship. She maintains that the relationship was only ever one of friendship and that, for the period of time the plaintiff lived in the Croydon Park house, he was a tenant of two rooms only for which he paid the first defendant a fortnightly rent.
A fundamental issue before the court is whether or not the plaintiff and first defendant were parties to a de facto relationship of more than 3 years duration. An important subsidiary issue in this respect concerns the nature of the relationship the plaintiff had with the first defendant’s sister, TN. It is common ground that the plaintiff and TN participated in a marriage ceremony on 29 February 2000, during the period in which the plaintiff maintains he was in a de facto relationship with the first defendant. As a matter of law, the fact that the plaintiff married the sister of the first defendant does not necessarily mean that he could not at the same time have been in a de facto relationship with the first defendant. Nevertheless, at least at an evidentiary level, it is an obvious potential impediment to the plaintiff’s claim. The defendants and TN maintain that the marriage was a genuine one but that this relationship fell into difficulties during 2003 at which time TN and the plaintiff separated whilst (according to the defendants) continuing to reside under the same roof at the Croydon Park property.
As at the date of the trial, the plaintiff and TN remained married but separated. The defendants maintain that the plaintiff and TN lived together as husband and wife on a genuine domestic basis whilst their relationship lasted but such was never the case between the first defendant and the plaintiff.
The plaintiff’s case is that the marriage to TN was a sham. He maintains that he went through a marriage ceremony and made various consequential but fraudulent representations to the immigration authorities, only in order to assist TN with her application for permanent residency in Australia.
When it became apparent that the plaintiff was determined to ventilate this issue in open court and to make admissions as to what he said was the sham nature of the marriage and the fraudulent nature of his dealings with the immigration authorities, I gave the usual warning to the plaintiff about his right to refuse to provide answers or present evidence that might have a tendency to expose him to conviction for a criminal offence. I also warned all parties that, subject to my findings on this issue, I may become obliged to refer the matter to the Commonwealth Attorney General for his consideration.
The evidence relevant to the issue of whether or not the marriage between the plaintiff and the sister, TN, was genuine will have some direct probative value with respect to the question of whether or not, at the same time, the plaintiff and the first defendant were parties to a de facto relationship. It will, of course, be potentially significant to my findings as to the honesty and reliability of the plaintiff on the one hand and of the first defendant on the other. However, at the end of the day, the central issue before me is whether or not the plaintiff and the first defendant were parties to a de facto relationship.
I also mention at this stage that the plaintiff has brought his claim for relief under the Act out of time. The plaintiff first filed proceedings in the Supreme Court of South Australia asserting an entitlement pursuant to a constructive trust over the Croydon Park property. The Summons and Statement of Claim seeking this relief were filed in support of or in conjunction with a notice for specific directions, filed on the same day, seeking an order extending time for the removal of a caveat the plaintiff had lodged against the title to the Croydon Park property. In due course, orders were made in the Supreme Court dealing with the caveat issue and the file was transferred to this court. During the Supreme Court proceedings, the plaintiff filed an affidavit of 13 April 2005 in which he raised for the first time in court proceedings, the existence of a de facto relationship although he did not at that stage purport to invoke the Act.
On 9 November 2005, after the proceedings were transferred into this court, an amended statement of claim was filed which invoked and sought relief pursuant to the Act for the first time. If, in fact, there was a de facto relationship between the parties and if, in fact, it came to an end prior to 9 November 2004, the plaintiff will have brought his claim out of time. Subsection 9(3) of the Act provides:
An application for the division of property must be made within one year after the end of the de facto relationship unless the court, after considering the interests of both de facto partners, is satisfied that extension of this period of limitation is necessary to avoid serious injustice to the applicant.
In due course, I will need to give consideration to whether or not the plaintiff’s claim is, in fact, out of time and, if so, whether or not an extension ought to be granted.
Was there a De Facto Relationship between the Plaintiff and the First Defendant
The starting point for determining whether a de facto relationship existed is the terms of the 1996 legislation. Section 3 provides insofar as is relevant:
De facto partner means a person who lives in a de facto relationship and includes –
(a) a person who is about to enter a de facto relationship; and
(b) a person who has lived in a de facto relationship;
De facto relationship means the relationship between a man and a woman who, although not legally married to each other, live together on a genuine domestic basis as husband and wife;
In the present case, before the court could make a property adjustment order under the Act, any de facto relationship found to exist must be one that existed for at least 3 years.[3]
[3] Section 9(1)(c). An exception to this 3 year requirement is where a child is born to the couple.
It is the definition set out above that must be applied to the facts of the case before me. Nevertheless, the notion of what it means to live together on a genuine domestic basis as husband and wife is likely to vary from case to case. Human personalities and needs differ markedly and it follows that the aspects of a relationship which might lead one to hold that a man and a woman are or are not living together on a genuine domestic basis as husband and wife are also likely to vary from case to case. Each case will involve the court making a value judgment having regard to a variety of factors relating to the particular relationship in question.[4]
[4] See generally Powell J in D v McA Supreme Court of New South Wales (Equity Division) 27 June 1986 (Unreported) as cited and considered by Gray J speaking on behalf of the Full Court (Gray, Sulan and David JJ) in Karpathiou v Clemente [2008] SASC 316 at [13].
Factors that have been identified as potentially relevant to this issue include the following:[5]
[5] Powell J in D v McA.
(i)the duration of the relationship;
(ii)the nature and extent of the common residence;
(iii)whether or not a sexual relationship existed;
(iv)the degree of financial inter-dependence, and any arrangement for support, between or by the parties;
(v)the ownership, use and acquisition of property;
(vi)the procreation of children;
(vii)the care and support of children;
(viii)the performance of household duties;
(ix)the degree of mutual commitment and mutual support; and
(x)reputation and “public” aspects of the relationship.
Whilst the factors set out above are all potentially relevant, this list of factors is not exhaustive.[6]
[6] Karpathiou v Clemente at [14].
On the day the trial was due to commence, I was informed that the solicitor for the plaintiff had ceased to act. I heard an application for and granted an order declaring that the solicitor had ceased to be the solicitor for the plaintiff in the action pursuant to District Court Rule (1987) 11.06. After a short adjournment, the plaintiff thereupon conducted the trial on his own behalf. The plaintiff gave evidence in support of his claim and called no other witnesses. The first defendant (DN), the second defendant (MHL), the first defendant’s sister (TN), and a brother-in-law of the first defendant (TVV), all gave evidence in the defence case. The plaintiff and the first defendant (supported by MHL and TN) gave diametrically opposed accounts of the nature of their relationship. Ultimately, the task before me is to determine which of the two accounts I accept to be accurate or the more accurate. If I were to accept the plaintiff’s account, I then would need to decide whether or not, on a balance of probabilities, it is sufficient to establish that a de facto relationship existed for a period of at least three years.
Before turning to a summary of the oral and documentary evidence that bears on these issues, I need to say something about MFI P1. MFI P1 is a lever arch folder of assorted documents that the plaintiff sought to tender en masse. I refused the tender and made it plain to the plaintiff, on more than one occasion during the trial, that I would only have regard to those documents in MFI P1 to which my attention was directed by a party and which were formally admitted without objection by any other party or following the resolution of any objection. I was taken to a number of documents in MFI P1 which were admitted as part of the plaintiff’s case. However, I was not taken to a majority of them and these were not admitted.
Evidence of the Plaintiff
The plaintiff said that he met the first defendant in about October 1997. He was doing private research at the State Library on North Terrace in Adelaide and she was working in a takeaway food shop directly opposite. He was a regular customer and, in time, he agreed to assist her to improve her English. The relationship developed quickly thereafter. He assisted with English lessons, they went on outings together and a sexual relationship commenced in November 1997. According to the plaintiff, the parties soon did everything together and acted “basically like a couple”.
For reasons never fully articulated in the evidence, the first defendant and the second defendant wanted to move out of the first defendant’s mother’s house where they had been living. In early to mid-1998 they both moved into the plaintiff’s two bedroom home unit which he had been renting in Malvern. They stayed there for about eight weeks. He said that they conducted themselves “basically as a family unit”. At this stage, the second defendant was a teenager. The plaintiff could not recall the precise nature of the sleeping and financial arrangements for this first eight week period. However, he continued to pay the Malvern home unit costs and he paid the sum of $300 per calendar month to a hui with which the first defendant was involved.[7] The plaintiff said that he obtained the money for these monthly contributions from his father.[8]
[7] The precise nature of the concept hui within the Adelaide Vietnamese culture was not clearly explained during the evidence. However, for present purposes it is sufficient to note that it is a form of community bank whereby a fixed number of participants band together and make regular periodic contributions to a central deposit over a number of years. Either at the end of a defined period or, on occasion, at an earlier time, each contributor is entitled to withdraw a capital sum. I will need to say more about hui type contributions later in these reasons.
[8] The role said to have been played by the plaintiff’s father in connection with the plaintiff’s own finances will be explained later in these reasons.
The relationship developed during 1998. However, after about eight weeks living in the Malvern unit and with the assistance of the plaintiff, the first and second defendants rented and moved into a home unit nearby in King Street, Unley Park. A regular sexual relationship (multiple times per week) continued whilst the plaintiff remained in the Malvern unit and the first defendant lived in the Unley Park unit.
The plaintiff was working, for himself, on a long-term research project related to the tourism industry. It was still at a nascent stage. As at the trial, the project had produced no commercial return. The plaintiff’s main source of income was a carer’s pension whilst his parents were alive. His mother died in 1996 and his father died in July 1999. At some stage, the plaintiff received a grant by way of income from something he called the National Economics Industry Scheme. He received this until he commenced receiving the disability pension some time in 2004. The first defendant was in full time employment at all times relevant to these proceedings.
The first and second defendants lived in the Unley Park unit for approximately 12 months. According to the plaintiff, he assisted them with their day-to-day affairs, particularly where they needed assistance with English. During this period, he and the first defendant started to look for a house to purchase and to which the three of them could move. This became a regular weekend activity. The Unley Park lease expired in late 1999 and whilst the plaintiff and first defendant continued to look for a house to purchase, the second defendant moved back with her grandmother and the first defendant moved back into the Malvern unit. After the plaintiff’s father died in July 1999, the plaintiff could be more flexible in terms of the areas in which he could live. He had lived at the Malvern unit for 9 years, close to his mother and his father, but he was now in a position to look elsewhere. He and the first defendant started to look in the inner western suburbs near where her family lived. This also assisted with respect to price considerations.
The plaintiff assisted the first defendant to arrange a bank loan. It is common ground that the bank loan was arranged in the name only of the first defendant and any house to be purchased was to be in the name only of the first defendant. The plaintiff maintained that this was on the first defendant’s suggestion because, by this time, the issue of the plaintiff marrying her sister at the request of the first defendant had arisen. The first conversation on this topic occurred in August 1999 after the death of the plaintiff’s father. He agreed with the first defendant, in effect, that, given that the position to be put to the immigration department was that he was the husband of the sister, it made sense for the purchase of any property together to be in the first defendant’s name.
In due course, a suitable house in Croydon Park was located. The first defendant conducted the negotiations with the vendor, who was Vietnamese, and the property was purchased for the sum of $136,000. I will come back to this purchase shortly.
In the meantime, the plaintiff had assisted in preparing an application for the sister to come from Vietnam to Australia on a six month tourist visa which, ultimately, was successful. TN arrived in late 1999. The plaintiff and TN were married on 29 February 2000. According to the plaintiff, TN lived with her mother during this six month visit and the first defendant lived at the Malvern unit. The plaintiff could not recall any time that he spent with TN other than on the wedding day. I will come back to the circumstances of the wedding in more detail later in these reasons. TN returned to Vietnam early in April 2000.
I return to the purchase of the Croydon Park house. The plaintiff could recall little detail of this. Indeed, he could not recall accurately the purchase price nor the details of how it was funded. The documentary evidence shows that the first defendant, after fully drawing down the loan necessary to purchase the property, incurred an initial debt with the Commonwealth Bank of $108,800 as at 3 April 2000. As at this date, it was repayable at the rate of $399 per fortnight. The documentary evidence also corroborates the first defendant’s evidence that the purchase price was $136,000.[9]
[9] See the CBA bank documentation at D32 and also the first two pages of document 79 of MFI P1, admitted by consent.
The plaintiff maintained that he contributed at least $10,000 towards the purchase price. He said that in April or May 1999 his father sold some shares and the proceeds were made available to the plaintiff. Document 75 in MFI P1 shows that on 3 February 1999, shares in the name of KHF, the plaintiff’s father, were sold for $6,574.42. Documents 76 and 77 of MFI P1 record a deposit of $5,000 into the first defendant’s ANZ bank account, Unley branch, on 25 March 1999 and a deposit of $5,000 into the first defendant’s Satisfac Credit Union account on 25 March 1999 respectively. The plaintiff said that both of these sums of $5,000 were banked by him into the first defendant’s accounts and both sums came from funds made available by his father. This is denied by the first defendant. There is nothing in the documentary evidence tendered before the court which directly corroborates the plaintiff’s evidence that these two amounts of $5,000 were contributed by him. The date of these two deposits also would appear to be a time well before, on the plaintiff’s account, the parties found a house to purchase. However, the plaintiff said that they started looking for a house to purchase in March 1999 (T120).

The plaintiff said that he provided other monies to the first defendant from time to time to help her with particular bills and household expenses. He gave two examples from early in the relationship. He said that on 6 December 1999 he provided the sum of $1,312 and on 29 December 1999 he provided the sum of $1,000. Documents 71 and 72 in MFI P1 would appear to lend some corroboration to the plaintiff’s evidence in this respect. I accept that he did make these two sums of money available to the first defendant although it is not possible on the evidence to make a finding as to the precise purpose for which these monies were made available.
The first defendant moved into the Croydon Park house at or about Easter of the year 2000. This much seems to be common ground. However, the plaintiff said that the first defendant remained in the Malvern unit for about 3 weeks after settlement while they did some work about the Croydon Park house, generally cleaning and tidying up, ordering carpets and the like. He did most of this work. That the first defendant waited about three weeks before moving is probably correct because Good Friday that year fell on 21 April. The plaintiff also said that he had the first defendant’s niece staying with him at this time whilst efforts were being made to sort out a family problem relating to her, but no details were given about this in the evidence. He, therefore, did not move into the Croydon Park property until July 2000.
It is common ground that the plaintiff and first defendant commenced to live under the same roof in the Croydon Park house in or about July 2000. The plaintiff maintained that he, the first defendant and the second defendant constituted what he described as “a normal household”. They shared everything and he and the first defendant regarded each other as “partners”. They slept together, they ate together and he became significantly involved with her family. As for financial arrangements, the first defendant was responsible for paying the mortgage repayments, the regular household utility expenses and outgoings and for food. The plaintiff paid to the first defendant $250 in cash each fortnight and met other incidental expenses on an ad hoc basis including expenses for outings, repairs and maintenance to the house. The plaintiff prepared the first defendant’s tax returns and because he had brought her into his business, claimed some of the household outgoings on her behalf as a tax deduction. I presume that this was on the basis that part of the house was set aside as a home office.
Furniture and contents for the Croydon Park house came from the Malvern unit together with other furniture and contents that the parties purchased together. Document 33, in MFI P1, tendered by the plaintiff, is a list of the items that he said they purchased together. This two page list was tendered by consent and the fact that each of these items was purchased jointly was not challenged in cross-examination and was not contradicted by the first defendant in her evidence. Document 30 of MFI P1 is a list of furniture and contents that the plaintiff said he owned and moved to the Croydon Park house. Again, this evidence was not directly challenged.
The plaintiff said that he redesigned the backyard during the year 2001 and otherwise did a significant amount of gardening and maintenance tasks around the house.[10] Exhibit P6 is a large number of assorted receipts relating to household purchases of a repairs and maintenance nature. Document 65 in MFI P1 was admitted by consent and is a table, accepted by the defendants to be accurate, summarising the information in the receipts in P6. Document 65 and P6 show that between July 2000 and September 2004, more than $3,300 was spent at various hardware and other home maintenance related stores. There are over 102 separate monetary entries spread over 83 separate dates or visits. 17 of the entries are for amounts exceeding $50, including one for $335. The plaintiff’s evidence that he paid all of the amounts listed on Document 65 was unchallenged in cross-examination and was not contradicted in the defendants’ evidence. In my view, P6 and Document 65 are of significance given the evidence by the first and second defendants that the plaintiff was only ever a tenant of two rooms in the house and did little around the house other than some weeding.
[10] As to the backyard, see the plaintiff’s evidence at T417-418 and exhibit D19.
In 2001 and 2002, the plaintiff’s relationship with the first defendant continued in the same manner as before. They maintained their domestic routines, their sexual relationship was maintained, they continued to operate, as the plaintiff put it, as a partnership and as a family unit, with the second defendant an integral part of that unit. The plaintiff continued to attend the defendants’ family functions, although he said he did not always go because of the demands of his work and because language difficulties made his participation less enjoyable.
Early in 2002, the first defendant moved out of the bedroom she had shared with the plaintiff and into another bedroom in the Croydon Park house. This was because both had medical issues; the first defendant needed to be close to the bathroom and the plaintiff was diagnosed with quite severe sleep apnoea which required him to wear a mask and use a noisy machine to assist with his breathing at night. However, their relationship did not change in any other respect. In particular, they maintained their sexual relationship; they merely slept in different rooms.
Also in the year 2002, TN returned to Adelaide. The details of her application for residency and its progress within the Department of Immigration were not explored in the evidence. However, her first application for residency was rejected after which it appears that the plaintiff repeatedly wrote to the authorities and prepared and presented a case by way of review or appeal from that decision. It was the plaintiff’s evidence that much of what he submitted in this respect was false and that he did this under the direction or at least at the request and with the assistance of the first defendant. The plaintiff was adamant that representations he made about the genuineness of his and TN’s marriage and of their relationship were completely false.
In any event, TN was permitted to return to Adelaide in August 2002. According to the plaintiff, she immediately went to live with her mother and it was not until mid-2004 that she moved into the Croydon Park house. The plaintiff said that he was not involved in any way with the decision for her to move into the Croydon Park house.
The plaintiff said that some time in the year 2000 he increased the amount of money he was paying the first defendant from $250 a fortnight to $300 a fortnight. He said that the additional $50 a fortnight was for a share in a hui, the proceeds of which were to assist him and the first defendant with the legal fees that were being incurred in connection with the TN immigration issue.
According to the plaintiff, his relationship with the first defendant started to disintegrate early in 2004 and that by November 2004 it was, in his view, “unsavable”. He at first said that the financial arrangements, insofar as they involved him, were in place until he left the house in July 2005. However, in cross-examination he conceded that he may have stopped paying the first defendant any money in or about November 2004.
It is plain, from the accounts of each of the plaintiff, the first defendant and the second defendant, that there was significant acrimony between the plaintiff and the defendants during much of 2004 and into 2005. On the plaintiff’s account, if it were to be accepted, his de facto relationship with the first defendant would have commenced no later than July 2000 and come to an end no earlier than mid-2004. If so, it would have lasted for a period of approximately four years. It may be that the relationship started earlier and continued for longer, that is, until some time later into 2004 or even early 2005. More precise findings in these respects may become important if I come to consider any financial adjustment that should be ordered and the plaintiff’s application for an extension of time, bearing in mind that his Amended Statement of Claim invoking the De Facto Relationships Act for the first time was filed in November 2005.
Evidence of the First Defendant
DN came to Australia in 1994. She met the plaintiff at the end of 1997 and he started to help her with her English as a result of which they became friends. He assisted her in various other practical ways including the opening of a bank account at the Satisfac Credit Union in 1998. At the time, she and her daughter were living at her mother’s house. She had a dispute with her mother and she and her daughter decided to move out. They moved temporarily into the plaintiff’s unit at Malvern while they looked for somewhere else to live. They stayed with the plaintiff only about one month and the plaintiff helped them to find a rental property. Whilst at the Malvern unit, she and her daughter slept in the main bedroom and the plaintiff slept in his study. She made a contribution of $200 per fortnight and bought her own food. She sometimes invited the plaintiff to eat with her and her daughter. She did not do any cleaning in the unit.
The first defendant acknowledged that she and the plaintiff had sexual relations but only on two occasions. The first was two weeks or so after she first moved into Malvern. She said she could not explain why she had sex with him on that occasion other than to say that she felt out of control for some reason. She suggested that she might have been affected by alcohol or drugs that the plaintiff had given her but, in cross-examination, did not press this allegation. However, she maintained that she felt strange and not in control of herself. She said she had sex with him on one other occasion shortly after that, but thereafter refused his requests. She told him that she had a male friend called Raymond and that she just wanted to be friends with the plaintiff. The plaintiff understood and accepted this. She told the court that her relationship with Raymond ended in 2005.
The plaintiff helped her find the Unley Park property where she and her daughter lived for about one year. However, DN said that during this period the plaintiff did not spend any nights with her at the Unley Park property and she did not spend any nights with him at the Malvern property.
The first defendant said that the plaintiff assisted her to look for a house to buy in the inner western suburbs. Her brother lent her $10,000 and her younger sister and her husband lent her $25,000. This was described as “family business” and there was nothing in writing. She received the money in cash each time. She remembered that she deposited the $25,000 into her bank but she gave the $10,000 to the plaintiff to deposit on her behalf. She denied that the plaintiff made a $10,000 contribution towards the house and said that she bought the house solely on her own behalf and that she always intended to transfer the house to her daughter, in time, as a wedding present. The first defendant agreed that the plaintiff went with her to the bank and helped her with the paperwork with respect to the mortgage and that he also arranged the conveyancing for the Croydon Park house. She denied that the house was in her name because of immigration reasons or because it was she who was borrowing the money; it was only ever going to be her house and in her name.
She said that the reason the plaintiff moved into the house in July 2000 was because, when her sister returned from Vietnam, she and the plaintiff were going to resume living together in the house. He asked her if he and TN could hire two rooms and it was arranged that he would pay her $200 every fortnight for rent of two rooms. At that time, it was anticipated that TN would make an early return. However, as TN’s return continued to be delayed, the plaintiff simply remained as the first defendant’s tenant, waiting for TN.
The first defendant said that the plaintiff gave her no other money and that she paid all the mortgage payments and the rates and taxes. The plaintiff slept alone in his room and his other room was used as an office. She did the cleaning of the house with the exception of his rooms and in the years 2000, 2001 and 2002, before TN returned, each cooked their own meals, although occasionally she would invite the plaintiff to join her and her daughter. Each paid for their own food and each did their own washing. She said that he only did minor work, such as weeding, in the garden but she never asked him to do any work in the garden.
The first defendant gave evidence about her employment history in Australia. There is no doubt that for most, if not all, of the period after 1997, she maintained full time employment, sometimes holding more than one job at a time, of an unskilled and semi-skilled nature. I accept that, during all of the period she and the plaintiff knew each other, she earned an income considerably greater than that received by the plaintiff by way of government benefits.
The first defendant told the court that she introduced her sister to the plaintiff. She showed him some photos after which the plaintiff spoke to her sister a couple of times on the telephone with the first defendant doing the interpreting. She said that when her sister came to Australia for a holiday at the end of 1999, staying for 6 months or so, she and the plaintiff went out together. The first defendant attended their civil marriage ceremony held at the registry in the city on 29 February 2000 after which there was a family party at the mother’s house. The first defendant said that it was a genuine marriage and that when TN went back to Vietnam in April 2000, the plaintiff told the first defendant that TN would be able to come back after a couple of months to live in the two rooms of the first defendant’s house that the plaintiff wanted to rent. She said she knew nothing about the immigration dealings other than from providing assistance with interpreting; the plaintiff looked after these.
According to the first defendant, when TN returned to Australia in August 2002, she resumed cohabitation with the plaintiff in the Croydon Park house. TN and the plaintiff shared a bedroom and TN did the cooking for the plaintiff. TN moved out at the beginning of 2005 when she bought her own house. However, according to the first defendant, after a few months of arriving back in Australia, TN left the plaintiff’s bedroom and stayed with the first defendant in her room. She told the first defendant that she and the plaintiff were no longer getting along, but she did not tell the first defendant much about this. After sleeping in the first defendant’s bedroom for a few months, TN moved into the lounge room until she moved out of the house in 2005. At all times, she was living there with her young daughter from an earlier relationship.
The first defendant maintained that the plaintiff did not assist her financially in any way but that she sometimes lent him money, including $5,000 in 2002. The first defendant denied that the plaintiff ever contributed to a hui. She said that trouble emerged in 2004 when the plaintiff stopped paying rent and refused to move out. Tension built up and ultimately he moved out of the house in the middle of 2005. According to her account, there was significant acrimony between the parties during 2004 and 2005. There was assertion and counter assertion that each took furniture and contents that did not belong to them.
I have only briefly summarised the effect of the evidence of the first defendant. It is clear that she and the plaintiff each have very different stories to tell. On her case, apart from a brief sexual flirtation back in 1997, she and the plaintiff were only ever friends. He assisted her from time to time in the early period, but there was no sharing of their life or their finances. He became her brother-in-law and rented two rooms from her in the Croydon Park house. Her account on the core issues could not be more different to that of the plaintiff.
The second defendant and the sister, TN, gave evidence consistent with and which, if accepted, would corroborate the core aspects of the first defendant’s account. I will refer to some aspects of their evidence later.
Observations of the Witnesses Generally
At this stage, I need to make some general observations about each of the witnesses.
I start with the plaintiff. He found himself in a difficult and stressful environment given that he lost his legal representation on the morning the trial was due to commence. I offered to hear any application for an adjournment that he might wish to make. However, the plaintiff did not apply for an adjournment. For various reasons, including the fact that he was suffering from a serious medical condition with respect to which significant medical interventions had been booked for the near future, he wanted the trial to proceed without delay. Having dealt with representation issues on the morning of the day of trial, I adjourned the trial proper to 10am the next day so as to give the plaintiff a little time within which to organise his thinking and his materials. Given the nature of the factual disputes between the parties, the conduct of the trial was always going to be particularly difficult for a person not legally trained and with minimal preparation time. I have taken these matters into account when assessing the plaintiff’s presentation as a witness.
In this respect, he was garrulous at times and readily wandered away from the issue about which he was endeavouring to give evidence. He was expansive and fulsome in his evidence where his recollection allowed but readily admitted it if he could not remember detail. At various times, particularly under cross-examination, the plaintiff was defensive and combative, there was a distinct undercurrent of passive aggressiveness and he demonstrated a capacity to bully. At times, the cross-examiner was not able to articulate clearly the defence position on particular topics and this allowed the plaintiff, when answering questions on these topics, to further obfuscate the issue. Nevertheless, I did not sense that the plaintiff was making things up, exaggerating or even embellishing. At times, his evidence on significant topics was understated. My impression of the plaintiff is that he was genuine in his belief that he and the first defendant were, during the period of time they were together, a “normal couple”, to use his term, with a relatively unexceptional but shared domestic existence.
Nevertheless, I do not doubt that, from the beginning and as was put to him in cross-examination, the plaintiff attempted to ingratiate himself with the first defendant by assisting her in a number of practical ways and by assisting her daughter and their wider family in a number of practical ways. I accept that he became a “Mr Fix-It” for family problems deriving from the fact that because of cultural and language differences and difficulties, the first defendant and the second defendant and, to a lesser extent, other members of the family needed assistance in dealing with schools, government departments, banks and the like. I also am in no doubt that the first defendant from very early on took advantage of the plaintiff’s willingness to ingratiate himself and readily accepted his offers of assistance. The question before me is whether or not, as the plaintiff would have it, the relationship developed into more than this.
All of the defence witnesses gave evidence through a Vietnamese interpreter. I am conscious that the demeanour of a witness can be a most unreliable guide when attempting to access the accuracy and reliability of their evidence. Difficulties in this respect are only exacerbated when evidence is given through an interpreter. Accordingly, I have placed little, if any, weight on demeanour per se when forming my views as to whether or not to accept particular aspects of the evidence given by the defence witnesses. Having recognised this, I did form the view, principally by reference to the nature of some of the questions asked in chief and the nature of their responses both in chief and in cross-examination, albeit conveyed through an interpreter, that each of the two defendants and TN were determined to stick to a simple story. I formed the view that the two defendants, in general, understood the questions that were asked both in examination-in-chief and in cross-examination. However, from time to time, each gave very limited answers or literal answers which did not particularly assist the court with respect to the issue in question. I had the impression that each defendant was reconstructing her evidence at times and developing it as she was pressed with and for more detail. Both the first and second defendants were quite petulant and, at times, aggressive in their answers. I found aspects of their evidence, particularly when under cross-examination, to be argumentative, evasive and ultimately unpersuasive. I was left with the impression that neither the first nor the second defendant was trying to give the court a full and complete picture of the nature of their respective relationships with the plaintiff.

I found the evidence of TN to be unpersuasive. During cross-examination, she appeared to fall back on a lack of understanding and language difficulties in order to avoid questions or to provide simple but ultimately unhelpful answers. She provided little detail about her relationship with the plaintiff prior to being married, during the more than 2 years she was in Vietnam waiting to return to Australia and during the period of time she said she lived with the plaintiff, as his wife, in the first defendant’s house following her return to Australia. I was left with very little information about her perspective on this relationship. Even what one would think to have been relatively straightforward topics, such as what type of meals she cooked for the plaintiff and why did the relationship breakdown elicited a minimal response. Of course, it would not be easy to create a detailed and convincing description of a marriage relationship if, in fact, it had not existed. Whilst TN plainly asserted that her marriage to the plaintiff was a genuine marriage and that the relationship itself was genuine and to the exclusion of anyone else, I formed the impression that she came to court to assist her sister and to confine her evidence to a very simple message.
Other Evidence of a More Objective Character
I turn to consider other aspects of the evidence relied upon by the plaintiff in support of his case.
Document 1 in MFI P1 comprises six original greeting cards. According to the plaintiff, they were received by him during the period 1998 to 2003. It is not in dispute that each of the cards was given to the plaintiff by the first defendant. None of the cards has been dated by the first defendant and none of the cards bears a pre-printed date or year of the event it purports to commemorate. However, there are three birthday cards, two Christmas cards and one Valentine’s Day card. Whilst it is conceivable, it is unlikely that the first defendant would give more than one birthday card to the plaintiff for any given birthday. I infer, on the balance of probabilities, that the three birthday cards span at least a 24 month period within the “relationship” of the plaintiff and first defendant. I make the following observations and findings about each of the five cards:
(i)One of the birthday cards is in the form of a Vietnamese postcard. There is no evidence from which it could be determined whether or not the card was hand delivered to the plaintiff or whether it was in fact posted from either Vietnam or some other place. The card is in neutral terms, “Have a nice day. Thinking of you on your birthday. I hope you have a wonderful birthday and though (sic) out the year. Don’t forget me.” It is addressed “To [B]” from “Love [D] xoxoxoxo”. Taken alone, I would place little weight on the use of the term “Love”. It can be quite equivocal in terms of describing the nature of a relationship, particularly when used in a written communication.
(ii)A second birthday card is a conventional, printed John Sands card and contains the following:
FR: [DNTT]

To – [B]

[Pre-printed publisher’s salutation]

Love from [D]

xoxoxoxoxoxo

[a hand drawn heart]
Again, considered on its own, it would be unwise to infer anything of significance from the writing contained in this card.
(iii)The third birthday card is in the typical form of a pre-printed birthday card. It has on its front, “Best wishes on your special day”. The salutation inside, handwritten by the first defendant, is as follows:
To darling [B]

[pre-printed publisher’s greeting]

Love [D] xoxoxo
To my mind, the use of the phrase “To darling [B]” is of rather more significance. Leaving aside the, commonly extravagant, usage of this term in the entertainment industry, the phrase “To darling X” is usually a phrase designed to demonstrate some real fondness for a person. It is an unusual salutation outside of its use within a family or a close personal relationship, particularly where a middle-aged man and a woman are concerned. The use of this salutation must be considered in the context of the nature of the relationship as described by the respective parties. It is entirely consistent with the relationship as described by the plaintiff. However, it is inconsistent with there being a relationship between the parties only of friendship and landlord and tenant, as has been described by the first defendant.
(iv)The fourth card[11] is a small Christmas card. Inside, the first defendant has written:
[11] By dealing with the cards in the order I have dealt with them, I do not mean to be suggesting any particular chronology of the dates that the various cards were prepared and delivered.
To: [B]

[Publisher’s pre-printed greeting]

Merry Xmas and Happy New Year. Don’t forgot (sic) me.

From [D]
(v)The next card is another, but larger, Christmas card. Inside, the first defendant has written:
Darling

[Publisher’s pre-printed greeting]

Love [D] xoxoxo
For reasons already given, I find the use of the word “Darling” to be of significance in the overall context of the evidence given by the plaintiff and the first defendant.
(vi) The sixth card is a Valentine’s Day card. Inside, the first defendant has written:
To: My Love [B]

[Publisher’s pre-printed greeting]

From Love [D] xoxoxoxoxoxoxo
Again, I find the expression “My Love [B]” to be of significance in the context of the evidence given by the plaintiff and the first defendant. The use of the term “My Love [B]” is not consistent with the first defendant’s description of the nature of the relationship.
Of the six cards I have just described, those in (iii), (v) and (vi) above, are of significance in my view. They are consistent with the plaintiff’s case and inconsistent with the first defendant’s case.
Document 2 of MFI P1 comprises four greeting cards and a used envelope.
(i)One of the cards is a Christmas card with a metallic ornamental set of bells attached to it. The card was written by and delivered by the second defendant. On the inside, the second defendant has written two lengthy greetings – one in English addressed to “Dear [B]” and another adjacent to it written in Vietnamese and addressed to her mother, the first defendant. The card is not dated. When asked in cross-examination why she did not send individual cards to the plaintiff and her mother, given that they were not in a relationship, she responded by saying that she did this to save money.
(ii)The next card is dated inside, Christmas 2001. The handwriting inside is that of CN, the second defendant’s husband, although they were not married as at Christmas 2001. He has written a Christmas greeting addressed jointly to the first defendant and the plaintiff and in both English and Vietnamese. The English version of the greeting states, “Wishing … [D] and [B] a Merry Christmas and Happy New Year”. The Vietnamese message is also addressed to “[D] and [B]”. I infer from the colour, size and shape of both this card and the envelope in the exhibit and the reference to “Christmas 2001” on both that the card was delivered in the envelope. On the envelope, it is written: “To … [D] and [B] Christmas 2001”. There is no postage mark on the envelope. I infer that the card in the envelope was delivered to the first defendant and the plaintiff, for Christmas 2001 by hand either by or on behalf of the second defendant’s husband.
(iii) A third, red, Christmas card has the date “Christmas 2002” recorded on the inside. It also contains a greeting written by the second defendant’s husband. They still were not married as at Christmas 2002. It contains a handwritten greeting in English in the terms “[B], wishing you a Merry Christmas and a year with lots of success in completing your project”. It also contains a greeting in Vietnamese that would appear to be in different terms. Nevertheless, the Vietnamese greeting is clearly addressed jointly to “[D]”, that is, the first defendant and “[B]”, that is, the plaintiff. Now, as at Christmas 2002 and on the defendant’s case, TN and the plaintiff were living together as husband and wife in the first defendant’s house. Indeed, Christmas 2002 was less than 5 months after TN had returned from Vietnam. It is true that, on the defence case, TN and the plaintiff fell out. However, TN said in examination-in-chief that this was in the middle of the year but without saying which year and she said in cross-examination that she and the plaintiff lived together from August 2002 until September 2003, at which time they separated but remained living under the same roof. On the defence case, she was living in the first defendant’s house, ostensibly happily married, from August 2002 until well into 2003. One would expect that a family insider, such as the second defendant’s husband-to-be, wishing to send a card for Christmas 2002 would have directed the card to both the plaintiff and TN rather than to the plaintiff and the first defendant. In these circumstances, it is curious that TN was not included in the greeting, but it is even more curious that the card was addressed to the plaintiff and the first defendant. The second defendant, when asked if she knew why TN was not included in this card, responded (T566):
That’s not my card. That’s my husband’s card and while he was writing this card, I wasn’t there.
. . . .
Well you should ask him. I’m not quite sure and maybe at that time he didn’t know that my aunty was there because he doesn’t know much about my family at that time and also he wasn’t attending at the wedding at that time.
At one level, what the second defendant said is true – it was not her card and if her husband had been called to give evidence, no doubt he would have had an answer. Nevertheless, the second defendant’s answer here was evasive and disingenuous. I do not accept that the second defendant’s boyfriend who was sufficiently familiar with the family to write a Christmas card jointly to the first defendant and the plaintiff for both 2001 and 2002 would not have known, at the time of writing the second card, that the second defendant’s aunt, TN, had come out from Vietnam only five months before Christmas 2002 and was living with “[B]” as his wife. The second defendant’s boyfriend had been involved with the second defendant for at least 12 months at the time of writing the 2002 Christmas card. An alternative explanation is that TN was not living with the plaintiff but with her mother as at Christmas 2002 and that at that time the plaintiff and the first defendant were living together as a couple.
(iv) The fourth card in this bundle is another Christmas card. It is undated other than within the handwritten messages in Vietnamese there is a reference to 2003. This card was put to the second defendant in cross-examination. She did not know who wrote or sent the card. However, in the witness box she translated the greeting as “Wishing Aunty [D] and Sister [H] and Daddy Merry Christmas and a Happy New Year in 2003”. She agreed that it was addressed at the top on the left hand side to “Aunty [D], Sister [H] and [B]”[12] and on the right hand side it read, “Good luck will come to Aunty [D], Sister [H] and [B] in the year 2003”. Again, there is no reference to TN in the card. Again, it is of some significance that as at Christmas 2003, some member of the defendants’ wider family had directed a Christmas card to “Aunty [D], Sister [H] and [B]”.[13]
[12] That is, the first defendant, the second defendant and the plaintiff respectively.
[13] It might have been submitted by the defendants but was not that the author of this card and indeed some of the other cards to which reference has been made was not called or given an opportunity to give evidence about the card. However, the cards were admitted without objection or with the consent of the defendants. They were put to the second defendant and she was given an opportunity to comment on them, including those written by her then husband to be and an opportunity was given for the first defendant to be recalled. To the extent that I have drawn inferences as to the year in which a particular card was provided, such were not disputed. The fact that the card presently under consideration was written by a member of the wider family also was not seriously in dispute.
Document 3 in MFI P1 comprises two photographs. One of the photographs is of the plaintiff and the first defendant. They are sitting together at a social function which the plaintiff said was some time in 1998. The plaintiff has his arm around the first defendant. The writing on the rear of the photograph was not admitted into evidence. The second photograph is set in and forms part of a thankyou card. The thankyou card relates to a wedding held on 5 October 2002, that is less than 2 months after TN’s return from Vietnam. The photograph is of the first defendant and the plaintiff flanking the bride and groom being the second defendant’s Aunty A (another sister of the first defendant) and her Uncle C. When asked in cross-examination whether it was traditional to have photographs of partners taken either side of the married couple or an engaged couple, the second defendant denied this and responded in this way (T569):
It is not true because we have – taking three people in a photo is bad luck and generally we have four people in a photograph, and also at that time, see my mum, I saw my mum have a picture with someone else, not only you in that occasion like this.
She also said that a card of this nature with such a photograph in it was given usually to thank a guest and not to a family member. She went on to make allegations that the plaintiff may have stolen this card and himself put the photograph in it. When asked to explain why TN was not in this photograph, the second defendant said that there would have been other photographs with TN and the plaintiff. However, no photographs of TN and the plaintiff have been tendered by either side. I will come back to this issue later, but the following exchange (at T571) is of significance, both in the present context and also when I come to consider the relevance of the absence of photographs of TN and, in particular, photographs of TN and the plaintiff together.
QCan you explain why [T] would not be in the photograph.
AI believe – when was the wedding? Well, at that time, I can’t remember when was my aunty arrive to Australia, but if she was there I believe she would have another picture, another photo taken with you at that time and it’s the wedding day and when we get any free time, you know, run in and take a picture, take a chance to take picture, because that’s special occasion.
QSo on special occasions there is lots of photographs taken, is that what you are saying?
AYes, at weddings there is lots and lots of photographs taken. Yes, of course.
QAnd at parties are there lots and lots –
ADepend what party.
QA wedding party, there is lots of photographs taken, is this correct.
AIf we have like big wedding day like this, because we do have photographs of the whole day, so you try to take a lot of picture at that time because it go as a package. But at the time of your party, with Aunty [T], there is no taken with picture, it’s a very casual one, like small party and I can’t remember if we do have picture taken at that time because I can’t remember, it’s a long, long time ago. But I remember at this time, big wedding, we certainly take a lot, a lot of picture taken.
I find it to be significant that the defence has not produced any photographs of TN with the plaintiff at this family wedding of 5 October 2002, particularly given that this was less than two months after her return from Vietnam. I find it to be significant that there are no photographs of the plaintiff together with TN at any other family function. I find it to be significant that there are no photographs of the plaintiff with TN on what should have been the joyous occasion of their wedding in February 2000[14] and at or shortly after, what one would have expected to have been, the very happy occasion of TN’s return from Vietnam in August 2002.
[14] There is no evidence to the effect that the wedding of the plaintiff and TN was not welcomed by or was opposed by TN’s family.
Document 4 of MFI P1 comprises six colour photographs. One appears to be a duplicate of the photograph taken in 1998 that is part of Document 3 of MFI P1. A second photograph is of another Vietnamese wedding where the plaintiff and the first defendant are each flanking the bride and groom. A third photograph shows the plaintiff and the first defendant sitting next to each other eating with a group of Vietnamese people. According to the plaintiff, this photograph was taken at a family gathering at HN’s house. She is a younger sister of the first defendant. The plaintiff was unable to provide the date on which the photograph was taken. A fourth photograph has a print date of 29 March 2000 displayed on its front. It is a photograph of the plaintiff and the first defendant together. Again, the plaintiff has his arm around the first defendant. This photo was taken exactly one month after the plaintiff and TN were married and very soon before TN returned to Vietnam in early April 2000 and the first defendant settled the Croydon Park purchase. There are two other photographs in this bundle, neither of which the plaintiff could date. They both show the plaintiff and the first defendant together smiling for the camera. They both appear to have been taken at semi-formal social occasions.
Document 112 of MFI P1 comprises ten photographs but only four include people in their subject matter.
(i)According to the plaintiff’s evidence, the photograph marked “D” was taken on 15 August 2001. He gave this evidence by reference to the printed date and the handwritten date to that effect recorded on the back of the photograph. His evidence was not challenged in this respect either in cross-examination or when the first defendant came to give evidence. It is likely that the printed date of 15 August 2001 is the date on which the photograph itself was printed rather than necessarily the date on which the photograph was taken. In any event, the evidence is unchallenged and I accept that this photograph was taken on or shortly prior to 15 August 2001. It shows a family scene which, according to the plaintiff, was at the house of the first defendant’s younger sister, HN. In the photograph, the plaintiff is sitting next to the first defendant at the table. As at August 2001, TN was in Vietnam.
(ii)The photograph marked “C” was taken at the engagement party of the second defendant, which occurred on 3 January 2004. At this time, on the defence case, the plaintiff and TN were living apart but under the same roof at the first defendant’s house in Croydon Park. Presumably, on the defence case, there would have been some animosity between TN, at least, and the plaintiff because she had moved out of the joint bedroom in September 2003 to sleep firstly in her sister’s room and then in the lounge room. Yet, in January 2004, the plaintiff and the first defendant are seen flanking the second defendant and her fiancé at the engagement party. It is not inconceivable that notwithstanding the difficulties the plaintiff may have been having with TN, he and the first defendant remained good friends and he remained sufficiently involved with the first and second defendant’s family so as to be invited to the engagement party. However, this photograph needs to be considered in the light of all of the evidence available and relevant to the nature of the relationships between the various parties.
(iii)According to the plaintiff, the photograph marked “B” shows the first defendant and the plaintiff at the Malvern unit in 1998. They are sitting together on a couch. There is a blanket over the knees of the first defendant. It is not clear from the photograph as to whether or not the blanket also extends over the knees of the plaintiff.
(iv)The photograph marked “E” shows the plaintiff and the first defendant flanking a man, by the name of SB, and AN, who is another sister of the first defendant, at their engagement party.

The only photographs in evidence said to include TN are those in Document 9 of MFI P1 and exhibits D30 and D31. Document 9 comprises four photographs. These were taken at the airport when TN returned to Vietnam in early April 2000 a little over a month after marrying the plaintiff. None of the photographs shows the plaintiff and TN together, let alone demonstrating any affection towards each other. Only one of the photographs includes the plaintiff and that is the one that shows the rear of a Caucasian male wearing a mauve pullover. The photographs also show a man in a blue baseball cap with a white, long sleeve buttoned at the neck shirt who, according to the plaintiff, was TN’s boyfriend at the time.
Exhibits D30 and D31 were taken at the second defendant’s engagement party on 3 January 2004. Unlike the photograph marked “C” in Document 112, none of these photographs contains a picture of the plaintiff either with TN or in the absence of TN. The second defendant and the first defendant both gave an explanation for the reason why the plaintiff was not in these photographs. They said, in effect, that he was not family and therefore would not have been included in this type of photograph. By inference, he was not even family with respect to TN at that stage given the asserted breakdown of their relationship the previous September. The plaintiff put to the second defendant that one of the reasons he was not in the photographs is that he was in fact the photographer. She denied this and insisted that the photographs were professionally taken. The plaintiff did not, in his evidence, say that he had taken the photos. He only put this proposition to the second defendant during her cross-examination. Strictly, I have no evidence before me that the plaintiff was the photographer or a photographer on the occasion of the second defendant’s engagement party. However, exhibits D30 and D31 were first introduced during the defence case. They were not put to the plaintiff during his cross-examination and he was not given an opportunity to give any evidence about them. If he had applied to re-open his case and his evidence on this topic, I might have been minded to grant the application. In any event, I found the evidence of the first defendant and the second defendant as to why the plaintiff would not be expected to be in the photographs to be unpersuasive and an example of their willingness to engage in reconstruction and to dissemble. The photograph marked “C” in Document 112 of MFI P1 also was taken at the engagement party of the second defendant and shows the plaintiff together with the first defendant.
Apart from exhibits D30 and D31 all of the photographs in evidence which include people were tendered in the plaintiff’s evidence-in-chief. It was plain what use he would seek to make of them and notwithstanding that the plaintiff did not directly cross-examine the first and second defendants about each of the photographs, counsel for the defendants had the opportunity to put them to his clients during their evidence and to ask them to comment on them. The first defendant was recalled specifically to be shown the photographs in D30 and D31. This also provided an opportunity for her to be taken to the other photographs but this was not taken up.
There are other tendered documents to which reference should be made. The plaintiff and the first defendant signed a document described as a partnership agreement as early as 1 July 1998. The document is exhibit P3. A recurring theme throughout the plaintiff’s evidence concerned the existence of a business that he had spent much time and money in developing. The copy of the document in evidence is not stamped. It should not have been admitted into evidence[15] and I have had no regard to its terms. Nevertheless, it is uncontested that the plaintiff and the first defendant purported to enter into some form of partnership or joint venture arrangement during 1998 concerning the plaintiff’s “business”.
[15] Stamp Duties Act 1923, s22.
The plaintiff has spent many hours researching information about cities and other locations around the world with a view to creating a comprehensive dossier on places to go and things to do and see in every conceivable holiday destination. There is some evidence of an attempt, unsuccessful, to market the product of the plaintiff’s work. Document 19 in MFI P1 comprises what were described in the evidence as typical newspaper advertisements that were run during the period 13 September 2003 to 12 May 2004 by which the plaintiff sought to attract franchisees for his business. It is not possible on the evidence before the court to make any sensible findings about the nature of the business or the extent to which, if any, either the first defendant or TN became involved. The first defendant has disclaimed any interest in the plaintiff’s business and gave evidence to the effect that she played no active role in it whatsoever.
In any event, it is not possible on the evidence before the court to place any value whatsoever on the plaintiff’s enterprise. The plaintiff’s main concern in raising the issue of his business revolved around allegations that much of his intellectual endeavour had been recorded on the hard disc of the “family” computer used in the Croydon Park house. It was further alleged by the plaintiff that either the second defendant or her husband had withheld from him the hard disc and his intellectual property or information recorded on that hard disc. The second defendant denied any knowledge of this and the second defendant’s husband is not a party to these proceedings.
Ultimately, the plaintiff conceded that his allegations against the second defendant and her husband could not be established and effectively abandoned any claim in these proceedings relating to the hard disc upon which he alleges his intellectual property had been recorded.
For present purposes, what may be of some, perhaps only marginal, significance is that the plaintiff was prepared to share his years of work by giving the first defendant some form of interest in his venture as early as 1998.
Also of significance is exhibit P6, the assorted receipts relating to various hardware, gardening and other household purchases, as summarised in Document 65 of MFI P1 together with the evidence of the plaintiff about these matters. I have already dealt with exhibit P6. However, this evidence is consistent with the plaintiff having more of a connection to the Croydon Park house than being merely the tenant of two rooms would suggest. It is also consistent with the plaintiff believing that he had more of a relationship with the first defendant than simply that of a friend who leased two rooms of the house. In short, it is consistent with the plaintiff’s case that he treated the Croydon Park house as his own and that he was in a relationship with the first defendant of such a nature that he was free to spend money on a regular basis that was to her and their joint benefit. In this respect, it is significant that the plaintiff was still spending money on the house in September 2004. The evidence concerning P6 and Document 65 is inconsistent with the evidence of both the first defendant and the second defendant that the plaintiff only did some weeding around the house. In my view, it is quite damaging to their credibility.
Exhibit D9 is a tenancy agreement purportedly dated 3 March 2000, that is, some few days after the plaintiff and TN were married. The document purports to record a lease arrangement between the plaintiff and TN as tenants and the second defendant, as landlord with respect to the Croydon Park premises. The plaintiff maintained that it was a sham. Exhibit D9 was introduced during the cross-examination of the plaintiff. Neither of the parties put D9 forward as a valid transactional document. The defendants proffered no explanation for its existence. The tenancy agreement is unstamped. I leave open the question of whether it should not have been admitted into evidence. In the circumstances, it is an interesting question whether or not s22 of the Stamp Duties Act 1923 applies.
However, and whilst I have had no regard to its terms in forming my ultimate conclusions in this matter, the plaintiff did say in his evidence that he fabricated a lease document showing he and TN as tenants and the second defendant as landlord. He did this in order to support TN’s application with the department of immigration for residency by purportedly demonstrating their plans for cohabitation. He put the second defendant down as the landlord at the request of the first defendant. Apart from its relevance to the plaintiff’s credit, the plaintiff’s conduct here does not provide any assistance. It is equally consistent with the plaintiff pressing TN’s immigration application because he was in love with her and they were due to be married as it is with him pressing the application because he was in a relationship with her sister and wanted to assist the family in obtaining permanent residency for TN.
Exhibit D11 is a series of original cards written by the plaintiff to TN whilst she was in Vietnam. They all bear the same date of the month, the 29^th, and cover the period from 29 May 2000 through to 29 January 2001. On their face, they are cards from a despondent husband in Adelaide to his wife in Vietnam expressing disappointment at the delay and difficulty of the process in obtaining permission for her to return to live with him in Australia. The plaintiff gave evidence that he wrote all of these cards on the same day and that they too were fabricated in order to provide a trail of correspondence to assist in satisfying the immigration department of the genuineness of his relationship with TN. I have read and considered the contents of each card but there is little profit to be had in attempting to analyse the content. The cards were not put to TN during cross-examination, nor was she taken to them during her examination-in-chief. No responding communications, if in fact there were any such communications, are in evidence.
The cards themselves, on their face, are consistent with the defence case. However, as against this, I have before me the plaintiff’s evidence that they are fabricated. Other documents that fall into the same category are copies of letters written by the plaintiff and sent to the Visa and Immigration Section of the Australian Consulate General in Vietnam dated 5 February 2001 (D12) and 13 March 2001 (D13) and copies of letters written by the plaintiff and apparently sent to TN dated 29 March 2001 (D14) 29 April 2001 (D14) and 16 May 2001 (D15). Again, on their face, these all support the defence case, at least as to the assertion that the plaintiff had a genuine relationship throughout 2000, 2001 and 2002 with TN. However, if they were fabricated, as the plaintiff would have it, they stand as a direct attack on his honesty and credibility.
Exhibit D17 is a copy of a partly completed divorce application. It is unsigned. It is difficult to know what state the document was in at the time it was completed and whether it was completed in full on the one occasion or on a number of occasions. The form of the document, as tendered, raises rather more questions than it answers. Very little evidence was given about the document by any witness. At first blush, the document purports to be an original. However, most of it would seem to have been printed by use of a colour printer, although there are some pages that would appear to have been produced by a black and white photocopier. On some of the pages, information has been completed in blue, perhaps original, ink. However, on one such page, the fifth page, the last entry under the heading “Given Names” was once completed in blue but has been cut off in the tender copy which suggests that there was in fact an earlier, original, version. Furthermore, in some places, the information provided is in black but it is not clear whether it has been completed in original black pen or photocopied. None of the oral evidence assists in these respects.
On the fifth page of D17, the question is asked, “Who is making this application?” The box for “both of us together” contains a cross in blue with a black circle around it, but the box that says “the husband alone” is also marked, this time with a black cross. On that same page, it is indicated in blue writing that the husband is [the plaintiff] and the wife is [TN]. Various other parts of the application have been completed. On the seventh page, it is recorded in blue writing that the wife arrived in Australia on 20 August 2002 and that she has lived in Australia for 2 years and 2 months. This suggests that the document may have been completed, at least in part, in or about October 2004. On the next page, it is recorded in black writing that the parties separated on 15 September 2003.
Intriguingly, towards the bottom of that page, question 18 asks, “Since you and your spouse separated, have you lived under the one roof, but not as husband and wife?” The box indicating the answer “No” has a black cross in it with a black circle around it, but the box indicating the answer “Yes” also has a black cross in it.
As I have said, the tendered document raises considerably more questions than it answers. The plaintiff was cross-examined on the document, but the document was not shown to any of the defendant’s witnesses, including TN. The plaintiff said that an application for divorce was prepared before he and TN were married (T412). He prepared the application. When asked why he did this, he answered:
Because when they – when I was requested to marry T, I said ‘What about the divorce?’, and they said ‘Don’t worry, you can sign the divorce papers now and we will put them in on the dates that you specify’.
Exhibit D17 was tendered without objection from the plaintiff as the application that he prepared (T412). When cross-examined on this document, the plaintiff was unable to explain how he was in a position in the year 2000 to insert the date when TN started to live in Australia as 20 August 2002. He wasn’t prepared to concede that he had predicted the date; he said he couldn’t recall how he arrived at the date. He said, “I do recall doing this document, but I do believe it was done prior”. However, he did say that he predicted the date of separation as 15 September 2003 on the basis that:
She would have had to co-habitat (sic) at least 2 years to qualify for any sort of application for residency, so there probably was an arbitrary date picked, I can’t recall it, but that could have been an arbitrary date.
He went on to say that having completed the document prior to TN coming out, a three year period between marriage on 29 February 2000 and separation on 15 September 2003 would have been “quite okay” because he was not to know that she was not going to be granted permission to come out to Australia by immigration at a much earlier time.
There is evidence to suggest that exhibit D17 remained in the possession of the first defendant after the plaintiff left the Croydon Park house. I am not able to find, on the balance of probabilities, that all of this document was completed in the year 2000, that is, prior to the plaintiff marrying TN. It is more likely that parts of it were completed at different times. It remains possible that parts of the document, particularly where a question has been answered inconsistently by more than one box being marked with a cross, have been completed by different people. In this respect, the two answers to question 18 offer a microcosm of the dispute concerning the plaintiff’s “relationship” with TN.
There is nothing that can corroborate the plaintiff’s evidence that it was completed, or at least discussed and contemplated, in advance of him marrying TN. He is either telling the truth on this point or he is not.
The plaintiff said that he contributed items of furniture and contents for the Croydon Park house. These came from the Malvern unit, and also from the furniture that the plaintiff had bought for the Unley Park unit (T131-132). In addition, according to the plaintiff, Document 33 of MFI P1 is a one page list of electrical contents and a one page list of furniture that the plaintiff says was jointly purchased by himself and the first defendant after March 2000. Document 33 was admitted during the plaintiff’s evidence-in-chief on the basis that it comprised the plaintiff’s evidence in this respect. Neither its accuracy in terms of the items listed nor the fact that each of the items were jointly purchased by the plaintiff and the first defendant was conceded by the defendants at the stage the document was tendered (T133). However, the plaintiff was not challenged on this issue in cross-examination, including, in particular, as to the content of Document 33, nor did the first defendant give evidence contradicting the plaintiff’s evidence in this respect.
According to the plaintiff, Document 34 of MFI P1 is a list of property that was purchased by either the first defendant or the plaintiff, some of which was purchased from Truscotts and Harvey Norman and paid off over time (T134). Document 34 purports to set out items of property retained by the first defendant and items of property retained by the plaintiff once he left the premises. Document 34 was tendered on the same basis on which Document 33 was tendered.
According to the plaintiff, Document 35 of MFI P1 is a list of property acquired by the plaintiff over at least a 20 year period including property that came to him through his family which the plaintiff says was all moved into the Croydon Park house. The plaintiff maintained that when he left the house, the items on this list were not available for him to take with him. He has categorised these items as missing contents belonging to him that have been retained or removed by the first defendant and/or members of her family. Again, Document 35 was admitted on a basis similar to that for Documents 33 and 34. The defendants denied that they or their family had taken property of the plaintiff or that did not belong to them. Indeed, the defendants have counter claimed that when the plaintiff left he took property belonging to them.
On the evidence put forward by both parties, it simply is not possible to form a view as to whether or not particular items of property said to be owned by one party or the other had been wrongfully taken or retained by a person not entitled to it. What is plain is that during the period the plaintiff lived at the Croydon Park house, each party contributed to the household a substantial quantity of furniture and household contents and that when the plaintiff finally left the Croydon Park house in, as I have said, quite acrimonious circumstances, various items of property were taken away by the plaintiff and various items retained by the defendants. It is not possible on the evidence to make findings as to:
(i)particular items of property, if any, wrongfully retained by one or other of the parties or by some other member of the defendants’ family;
(ii)the value of any such items;
(iii)the value of the property brought to the premises and the “relationship” by the plaintiff;
(iv)the value of the property brought to the premises and the “relationship” by the defendants; or
(v)the value of the pool of household furniture and contents in the possession of the plaintiff and first defendant, whether or not owned individually or owned jointly, as at the time that any de facto relationship between them came to an end.
I will return to the potential significance of this failure by both parties to adduce any useful evidence on these topics later in these reasons.
The plaintiff was not challenged in cross-examination about, nor did the defendants give evidence contrary to, the plaintiff’s assertion that the property set out in Document 35 was taken by the plaintiff to the Croydon Park house. Some further appreciation of the nature and quantity of this property can be seen from the photographs tendered (T222ff) being MFI P1 Document 5 (taken 11 June 2004) Document 6 (taken 11 June 2004) Document 7 (taken 1 September 2003) Document 14 (taken in 1985 when the bookcase and library were at a previous house of the plaintiff) Document 15 (taken 1 September 2003) Document 111 (taken 11 June 2004) and Document 112 (taken 11 June 2004). Again, these photographs were admitted in the plaintiff’s case without objection by the defendants. The plaintiff gave evidence about most of these photographs, identifying and describing the property depicted in the photographs that was owned by him and taken to the Croydon Park house (T226ff).

Exhibit P32 is a series of Commonwealth Bank statements relevant to the home loan taken in the name of the first defendant. The bundle of statements commences with statement 1 for the period 24 March 2000 to 3 April 2000 at which latter date the closing balance was a debit of $108,800 being the fully drawn loan inclusive of bank fees. The exhibit also includes each statement issued at six monthly intervals thereafter until and including statement 10 for the period 1 January 2004 to 13 June 2004, save for statements 5 and 9 and page 3 of statement 2 which are missing. The balance of the loan as at 13 June 2004 was $101,042 in debit.
For present purposes I have adopted May/June 2004 as the date at which the de facto relationship ended. I find, therefore, that as at the end of the relationship the balance of the house loan outstanding stood at approximately $101,000. On this basis, the first defendant had a net equity in the property as at that date of $93,500.
However, exhibit D32 also discloses that the first defendant made an extra capital repayment of $2,000 on 3 June 2002 but withdrew lump sums of $2,000 on 28 January 2003, $2,000 on 21 May 2003, $1,000 on 16 June 2003 and $2,000 on 5 March 2004. There is no evidence before the court from which a finding can be made as to the purpose of or circumstances surrounding these transactions. However, either the first defendant made herself or the plaintiff and the first defendant made themselves a net $5,000 better off through this direct access to the Commonwealth Bank home loan account. In addition, some form of refinancing took place in June 2004. The loan account was debited with $130,500 but credited with payments of $100,742 and $29,758 making a total of $130,500. Again, there is no evidence before the court from which findings can be made as to the purpose of or circumstances concerning these transactions. Nevertheless, they had a neutral net effect and I have ignored them when calculating the net equity that the first defendant had or can be deemed to have had in the property as at May/June 2004. However, I do propose to take account of the withdrawals by the first defendant in the net amount of $5,000 by notionally taking that off the total of the loan as at June 2004. That is, so as to notionally increase the equity in the property. I therefore adopt for present purposes a notional net equity as at May/June 2004 of $98,500.

Contributions by the Parties

The notional net equity of $98,500 as at the date the de facto relationship came to an end can be broken up into the following components:
(i)$52,500 market appreciation.[26]
(ii)$12,800 by way of reduction of the loan principal borrowed from the bank.[27]
(iii)Lump sum contributions made on behalf of the plaintiff in the amount of $12,300 (rounded down).[28]
(iv)The balance remaining of $20,900 which I infer to have been directly contributed by the defendant either from her own resources or through family assistance.
[26] Agreed value of $194,500 less total price of $142,000 being purchase price together with estimated costs of purchase of $6,000.
[27] Opening debit balance of $108,800 less the notional $96,000 due to the bank as at May/June 2004.
[28] Being the two lots of $5,000 obtained from the plaintiff’s father, together with the amounts of $1,000 and $1,312 contributed by the plaintiff in December 1999.
I accept the plaintiff’s evidence that he contributed the amount of $250 per fortnight starting in July 2000 which he increased at some time during that year to $300 per fortnight. I also accept the plaintiff’s evidence that $50 of that $300 per fortnight represented part of a share in a hui and that in April 2002 he received a payment from the hui in the amount of $6,000 which he used for legal fees regarding the TN immigration issue. The plaintiff also made financial contributions in addition to those that I have already dealt with. When the Unley Park lease expired in late 1999, the first defendant returned to live with the plaintiff in the Malvern unit, the time I have found the de facto relationship to have commenced. She stayed in the Malvern unit until moving to the Croydon Park house in early April 2000. Whilst the evidence does not permit any precise findings, in this respect, I accept that for this four or more months the plaintiff, by providing a home for the first defendant at the Malvern unit, made a significant financial contribution to the parties joint living expenses.
I also accept the plaintiff’s evidence to the effect that he incurred other incidental living expenses on behalf of himself and the first defendant including expenses related to outings and repairs and maintenance to the house. In this respect, I have already made a finding that the plaintiff, at the least, spent in excess of $3,300 at various hardware and other home maintenance related stores. In addition, I accept the plaintiff’s evidence that he made repayments over a period of approximately $110 per month with respect to a large screen TV and a stereo from Truscotts. I also accept that the plaintiff incurred various expenses including legal expenses in pursuing, at the request of and with the assistance of the first defendant, the immigration affairs of TN. However, the amount the plaintiff received from the hui was, according to his evidence which I accept, intended to recompense him or place him in funds for some of these expenses.
Throughout the period of the relationship, the plaintiff was on a carer’s pension or other social security benefit in the amount of approximately $400 a fortnight. In addition, the plaintiff received some fees from time to time for lectures and teaching. However, the evidence does not suggest that these were of any real significance. Doing the best I can on the evidence before me, I find that the plaintiff contributed in the order of $350 a fortnight to the household comprising himself, the first defendant and the second defendant and, in particular, to the common benefit of himself and the first defendant.
The evidence as to financial contributions made by the first defendant is also very sketchy. The first defendant has, at all times, maintained that she made no contributions to the common benefit of the parties but that she and the plaintiff lived separately and apart, albeit under the one roof. However, the evidence does support the following findings.
(i)The first defendant was a very hard worker throughout the period of the relationship. She worked full time and, at times, held more than one job, in unskilled and semi-skilled capacities. She assumed direct responsibility for payment of the mortgage at the rate of $399 per fortnight and for the rates and taxes on the property.
(ii)The first defendant took out a revolving line of credit for the purchase of furniture and other household items with AGC and for which she was the party legally responsible.[29]
(iii)The first defendant, in the main, purchased the food and other household consumables.
[29] Exhibit D26.
There were no doubt many other expenses from time to time that had to be met if the household was to function and I expect that both the plaintiff and the first defendant from time to time met these without keeping a tally between them. There may have been other specific lump sum contributions made by the plaintiff or made by the first defendant. However, I have no evidence about these possibilities other than evidence from the first defendant that she at one stage lent sums of money to the plaintiff which were not repaid. However, there is no corroborative evidence of this and given my rejection of the first defendant’s evidence insofar as it bears on the relationship she had with the plaintiff, I am not prepared to accept her evidence on this point.
Doing the best I can, I estimate that in addition to the $399 per fortnight payable by way of mortgage repayments, the first defendant contributed in the order of an additional $200 per fortnight to common household expenses making a total contribution of $600 per fortnight throughout the relationship.
Preliminary Estimate of the Parties’ Relative Contributions to the Croydon Park Equity
I adopt as my starting point a financial contribution of $350 per fortnight by the plaintiff and a financial contribution of $600 per fortnight by the first defendant. These are only very broad estimates and make no allowance for increases in income and household expenses over time during the parties’ relationship. What I have tried to do is to estimate each person’s relative contribution to common expenses at any point in time. The plaintiff’s estimated contribution of $350 towards the estimated total fortnightly outgoings of $950 is approximately 37%. Given the income sources available to the plaintiff throughout the relationship, a contribution of $350 per fortnight would be, if anything, a little generous towards the plaintiff. If I stand back and consider the nature of each person’s financial contributions together with their respective capacities to pay, a one third/two thirds split seems about right as a starting point.
(i)I start with the proposition therefore that the plaintiff contributed, say, one third of the $12,800 reduction in loan principal, that is, an amount of $4,267 rounded up. In addition, the plaintiff made lump sum contributions in the amount of $12,300 making a total contribution to this point of $16,567.
(ii)Similarly, the first defendant contributed, say, two thirds to the reduction in loan principal of $12,800 amounting to $8,533 rounded down. In addition, she made other lump sum contributions of $20,900 making a total contribution to this point of $29,433.
It is these two figures that provide the parties’ proportionate contributions to the net equity in the property. In other words, if the net equity were to be divided between the parties strictly in accordance with their financial contributions, the plaintiff would be entitled to 36% of the notional net equity of $98,500, that is an amount of $35,460.[30]
[30] The plaintiff’s overall contribution of $16,567 is approximately 36% of the total of his contribution of $16,567 and the first defendant’s contribution of $29,433 ($46,000).
At first glance, it seems that this exercise has done little more than would have been achieved had the notional net equity of $98,500 simply been divided in the proportions that the parties respective fortnightly contributions of $350 and $600 bear to the total of those contributions, that is $950 (36.84% and 63.16%). However, in my view, the correct approach is the one that I have set out. It just so happens that the plaintiff’s capital contribution of $12,300 is also approximately 37% of the total of the parties’ capital contributions.[31]
[31] As I have found, the first defendant has contributed $20,900 making a total of the parties’ capital contributions of $33,200. $12,300 is 37.05% of this total.
The task before the court is not merely a mechanical or mathematical exercise. Ultimately, any order made must lead to a division of the property between the de facto partners in a way that is just and equitable. In this respect, it is not sufficient just to look at the financial contributions of the parties. Section 11 of the Act also requires a consideration of non-financial contributions including homemaking and parenting contributions made by either or both of the partners to the other or to the children of either partner, together with any “other relevant matters”.
Other Considerations
There is little evidence before the court on which firm conclusions can be drawn about the nature and extent of other contributions each made to the other. I am satisfied that the plaintiff himself performed or organised the physical maintenance and improvement work in and around the house and outside in the garden. I accept that the plaintiff contributed significantly his own labour. He said, and I accept, that he also did much of the clothes washing (T137). However, the first defendant also performed domestic tasks, including cooking, shopping and general housekeeping, at least according to the plaintiff’s evidence. The plaintiff “worked” from home and spent more time at home than did the first defendant. I am in no position to determine precisely the extent to which one contributed more or less than the other in terms of homemaking. However, I am satisfied that the first defendant did more than might have been expected of her given that she was working full time. There is some evidence from the plaintiff that he assisted the second defendant with issues in her life, in particular concerning her schooling. He also took her to Vietnamese dancing classes (T125). The evidence on matters of this nature was limited.[32] Nevertheless, it gives some insight into the parties’ relationships and, in particular, the fact that the plaintiff took some responsibility as an adult figure in the life of the first defendant’s teenage daughter.
[32] The plaintiff also undertook child minding duties for the first defendant’s sister, HN, for 1 to 2 hours a day over a period of about 8 weeks in 2000 (T125). This is a factor that is relevant more to the nature of the plaintiff’s relationship with the first defendant and her family rather than by way of a non-financial contribution to the common benefit of the de facto partnership.
To this point, apart from one matter that I deal with below, I cannot see any other relevant matters that would cause me to depart substantially from the preliminary adjustment that I have indicated above. The plaintiff has been left with nothing other than some of the furniture that he brought to the union after a relationship of about 4 years and 6 months. He gave up his rented flat at Malvern where he had been living for the best part of 9 years because he was entering into what he hoped would be a lasting relationship with the first defendant. It is true that the plaintiff will end up with a capital sum whereas, had he continued to rent at Malvern, it is unlikely that he would have been able to acquire that sum. Nevertheless, this will result from the fact that he made capital and income contributions, the effect of which assisted the first defendant to acquire the Croydon Park property and ultimately to generate a significant market appreciation in the value of that property.
The plaintiff and the first defendant lived together as husband and wife on a genuine domestic basis. They each took from the relationship what the relationship offered and they each enjoyed benefits obtained from pooling their joint resources for 4 years and 6 months or so. I have had regard to the length of the relationship. Whilst not particularly lengthy, it was not an insubstantial period. Now that the relationship has ended, I see nothing unfair in allowing the plaintiff to recover his initial capital contributions and a proportion of the increase in market value of the Croydon Park property, bearing in mind his financial and non-financial contributions throughout the relationship.
I have given consideration as to whether, in all the circumstances, the contributions of the plaintiff in this case have already been sufficiently recognised and compensated for. In this respect, there is one further matter for consideration. For most of the parties’ relationship, the plaintiff enjoyed living at the Croydon Park property “rent free”. One way of looking at the matter is that the plaintiff contributed approximately one third of the cost of acquisition and running costs of the property but had occupation rights closer to one half. It is only fair to make an allowance in favour of the first defendant for this financial advantage conferred on the plaintiff.
But for this consideration, I would see no cause to make any substantial adjustment to the initial distribution calculated on the basis of the parties’ direct financial contributions as set out above. However, after making an allowance, on a broadaxe basis, for this consideration, I find the plaintiff to be entitled to a payment in the amount of $30,000. Had the Croydon Park property been sold as at May/June 2004, the first defendant would have been in a position to discharge the outstanding mortgage, pay the plaintiff $30,000 and retain the balance of the net equity. In my view, this would have led to a just and equitable division of property bearing in mind the findings I have made above including those in respect of the furniture and household contents.
However, on 20 September 2004, the first defendant executed a transfer of the Croydon Park property in favour of her daughter, the second defendant, with an expressed consideration of $130,000. Most likely, this consideration was significantly less than the value of the property.[33] Registration of this transfer in favour of the second defendant was delayed following the initiation of proceedings by the plaintiff in the Supreme Court of South Australia. An injunction preventing the registration of the transfer was granted by a Master of the Supreme Court. It was lifted on 11 May 2005. There is no evidence before me as to when the title to the Croydon Park property was thereafter registered in the name of the second defendant. However, it is common ground that the second defendant was the registered proprietor as at the date of trial. This does mean that, ordinarily, it would not be possible, but subject to a matter I come to in a moment, to order, for example, that the property be sold and a proportion of the proceeds paid to the plaintiff. It may be that the only appropriate order would be an order in accordance with ss10(1) and taking up the possibility identified in ss10(2)(c) for the payment by the first defendant to the plaintiff of a lump sum in the amount of $30,000.
[33] See exhibit P23. A property bought in 2000 for $136,000 would not ordinarily sell in 2004 for $130,000.
Before making an order to this effect, I need to deal with the plaintiff’s claim pursuant to s14 of the Act for an order compelling the second defendant to reconvey title to the Croydon Park property to the first defendant. Sub-sections 14(1) and (3) provide:
(1) If a court is satisfied that a transaction has been entered into to defeat, or has the effect of defeating, an order, or an anticipated order, for the division of property, the court may set aside the transaction and give consequential orders and directions.
(3) In exercising its powers under this section, the court must have regard to all interests in the property to which the proceedings relate.
Section 15 provides:
An order or injunction under this Act cannot prejudice the interests of a person who acquires an interest in property of a de facto partner in good faith, for value, and without notice that the property may be the subject of an application under this Act.
If the first defendant had remained the owner of the Croydon Park property, I may well have ordered that she pay the plaintiff a lump sum and that, if the amount ordered was not paid within a specified time, the Croydon Park property be sold and the net proceeds of sale divided. In these circumstances, it might be said that the transfer of the property to the second defendant constituted a transaction that “…has the effect of defeating, an order, or an anticipated order, for the division of property…”. I will assume this, but without finally deciding it. I also do not propose to determine, finally, the question of whether or not this transaction was “entered into [in order] to defeat … an anticipated order for the division of property”.
I assume for the present that s14(1) of the Act is enlivened and that there is power to – “the court may” – set aside the transaction and make consequential orders. It would appear that a discretion, in this respect, is conferred on the court although little indication is given as to the matters to which a court is to have regard when exercising the discretion. Of course, any such discretion must be exercised judicially in accordance with the broad principles as described by Lord Halsbury LC, in Sharp v Wakefield.[34] In addition, the court is “to have regard to all interests in the property to which the proceedings relate” (ss14(3)) and the requirements of s15 must be observed.
[34] [1891] AC 173 at 179.

The execution of the transfer of the Croydon Park property to the second defendant (20 September 2004) occurred after early 2004, the time the plaintiff said that his relationship with the first defendant started to disintegrate, and before November 2004, the time the plaintiff said the relationship had become “unsavable”. There is no evidence before me as to the first defendant’s or second defendant’s state of mind as at the time of execution of the transfer. The first defendant did say that it was her intention from the outset to transfer the property to her daughter, in due course, as a wedding present. This may or may not be correct. Such an intention is not necessarily inconsistent with the presence of a de facto relationship and an intention to pursue this relationship with the plaintiff whilst living together in the Croydon Park property. However, it is inconsistent with the plaintiff’s evidence that their joint intention was that the house was put in the name of the first defendant but purchased on their joint behalf. I have already expressed a preference for the plaintiff’s evidence over that of the first defendant, at least with respect to matters central to the nature of their relationship. I therefore find that either the first defendant did not have an intention to convey the property to her daughter at the time she purchased it or that if she did, she did not convey that intention to the plaintiff but, rather, allowed him to believe that the purchase was to be for their joint benefit. I do accept that if the first defendant did not have an intention, initially, to transfer the property to the second defendant, she acquired such an intention at some stage during her relationship with the plaintiff.
However, neither the first defendant nor the second defendant were cross-examined on this issue and, in particular, as to their intention at the time the transfer was executed. Importantly, there is insufficient evidence before me to enable an inference to be drawn that the second defendant was aware at that time of the possibility that the plaintiff might have an equitable interest in the Croydon Park property or an entitlement to an order, affecting the property, pursuant to the De Facto Relationships Act.
Furthermore, such evidence as there is suggests that the second defendant may have acquired her interest in the property for value, although not necessarily full value.[35] I also have no evidence as to the nature or extent of any interest in the property that may be held by any mortgagee of the second defendant. This was touched on during the cross-examination of the second defendant but inconclusively.
[35] Exhibit P23.
I am left in the following position:
(i)I am not satisfied that the second defendant, at the time she signed and received the transfer, was on notice that the Croydon Park property may be subject to an order under the Act.
(ii)I am unable to form a view as to whether or not actual value changed hands notwithstanding that an amount of $130,000 is expressed in the memorandum of transfer as the consideration for the transfer. In other words, I am unable to determine, on the evidence, if the second defendant, in fact, paid the first defendant anything for the property or, at the least, incurred an enforceable debt for the purchase price.
(iii)I am not in a position to find whether or not there is a mortgagee with an interest in the property although such is a distinct possibility.
(iv)I am not in a position to find whether or not any other person or entity presently has an interest in the property.
In these circumstances, I am not in a position to find, on a balance of probabilities, that the second defendant is a person who has acquired an interest in the Croydon Park property “in good faith, for value, and without notice…” nor am I able to find that she is not such a person. The absolute defence to the plaintiff’s application for a reconveyance of the property, provided for in s15 of the Act, has not been made out. However, I am not in a position to be satisfied, on a balance of probabilities, that no other person or entity, such as a mortgagee, acquired an interest in the property for value without notice.
Sub-section 14(3) of the Act obliges me, when considering whether or not to make an order setting aside a transaction, to have regard to all interests in the property. In my view, an onus rests on a party, in this case, the plaintiff, who seeks such an order, to provide sufficient evidence to enable the court to identify and to take into account any such interests. The matter can be tested this way. If I were to order that the transfer to the second defendant be set aside and, in effect, that the property be conveyed by the second defendant to the first defendant, would the first defendant be able to provide full value? If not, what effect would that have on the rights of any mortgagee? These are questions I am unable to answer on the evidence before the court. At the very least I should hear from any other person with an interest in the property, whether or not they are a party to these proceedings. The plaintiff has not placed the Court in a position where such an order could fairly and safely be made. In addition, I cannot ignore the interest of the second defendant in the property, particularly where I am unable to form a view as to whether or not she satisfies the requirements of s15.
I decline to make an order under s14 of the Act for these reasons. I am fortified in this decision by the fact that the plaintiff’s entitlement will be in the amount of only $30,000 plus interest. In all the circumstances, it would be unfairly burdensome on the second defendant to reverse in 2009 the acquisition of a residential property acquired in 2004-2005 in order to provide contingent security for the sum of $30,000 plus interest.
The plaintiff has also sought a declaration that the first defendant held the Croydon Park property, as at the end of the relationship, on constructive trust for the benefit of herself and the plaintiff. Equitable remedies are discretionary. Even if a constructive trust might be made out, as to which I make no finding, in my view the potential hardship to be visited on the second defendant and the potential to cause harm to third party interests are such that any such constructive trust would have ceased to have the Croydon Park property as its subject matter. At best, the plaintiff might be entitled to a constructive trust over part of any proceeds of sale in the hands of the first defendant or any subsequent property in which they might have been invested. However, there is no evidence on the basis of which any findings about these matters could be made. The plaintiff’s claim against the first defendant for a constructive trust fails for want of any property as its subject. I add that there is insufficient evidence concerning the conduct and knowledge of the second defendant to justify the making of a declaration for a constructive trust over the property in her hands based on her conduct or knowledge as opposed to that of the first defendant.
Extension of Time
I turn now to consider the question of whether or not the plaintiff should be granted an extension of time within which to bring proceedings under the De Facto Relationship Act. In accordance with my findings above:
(i)the plaintiff’s Amended Statement of Claim which invoked and sought relief pursuant to the De Facto Relationships Act for the first time was filed 9 November 2005, some 17 months after the relationship ended;
(ii)even if the relationship ended earlier in 2004, the plaintiff still would be less than 12 months out of time;
(iii)the first defendant was on notice of a de facto relationship allegation as early as 13 April 2005 at which time she was being legally advised;
(iv)given my decision concerning the plaintiff’s claim for a constructive trust, the plaintiff would be without remedy if an extension of time were not to be granted; and
(v)the first defendant has not identified any prejudice caused by the plaintiff’s claim under the Act having been filed out of time, that is, more than 12 months after the relationship ended.
Before granting an extension of the time within which proceedings must be brought, I have to be satisfied, after considering the interests of both de facto partners, that an extension is necessary to avoid serious injustice to the applicant, that is, the plaintiff.[36]
[36] Sub-section 9(3).
In all of the circumstances, I am so satisfied. Insofar as an order may be necessary I make an order that the plaintiff is entitled to have his application under ss9 and 10 for a division of the plaintiff’s and the first defendant’s property heard and determined notwithstanding that it has been brought out of time.
Proposed Orders
For the reasons set out above, I make no orders pursuant to paragraphs 66(b), (d), (e), (f), (g), (h), (i) and 67 of the Second Further Amended Statement of Claim and I dismiss the defendants’ counterclaim.
However, I do propose to order, pursuant to s10 of the Act, that the first defendant pay to the plaintiff a lump sum of $30,000 and to make orders concerning the household furniture and contents retained by each of the plaintiff and the first defendant as earlier indicated.
Ordinarily, such a lump sum award would attract pre-judgment simple interest in accordance with s39 of the District Court Act 1991. In my view, this amount fell due to the plaintiff no later than 1 June 2004. However, the plaintiff did occupy the premises whilst paying (on my findings) $350 per week until some time in November 2004 and thereafter until early to mid 2005 whilst paying nothing. In these circumstances, the first defendant and the plaintiff had the “use” of their respective shares until the time the plaintiff vacated the premises and the first defendant only enjoyed or had use of the plaintiff’s share from that date. In these circumstances, interest should only run from, say, 1 June 2005. If I were to calculate simple interest, I would adopt an average of 6% per annum for the period 1 June 2005 to the date of judgment on the principal amount of $30,000.
Guided by these considerations, I am inclined to exercise the discretion under s39(3) of the District Court Act and award a lump sum of $7,500 in lieu of interest. However, before doing so and before entering final orders in this matter, I will hear the parties on this issue of interest and on the question of costs.