Buch v Reeves No. DCCIV-02-736

Buch v Reeves
[2004] SADC 024
Judge Muecke
Civil
Introduction

This action involves a claim and a counterclaim by which the plaintiff (‘Mr Buch’) and the defendant (‘Ms Reeves’) seek orders pursuant to s10 of the De Facto Relationships Act 1996 (‘the De Facto Relationships Act’).
Mr Buch and Ms Reeves lived together on a genuine domestic basis as husband and wife from July 1996 until 28 May 2001. That period is about four years and ten months.
After their de facto relationship ended both parties applied to this court for a division of property. In deciding whether to make an order for the division of property under Part 3 of the De Facto Relationships Act, and if so what the terms of any order should be, the court must consider the matters set out in s11(1)(a), (b) and (c) and may have regard to other relevant matters (s11(1)(d)).
The court must (as far as practicable) finally resolve questions about the division of property between de facto partners, Mr Buch and Ms Reeves, and avoid further proceedings between them (s12 of the De Facto Relationships Act).
At the trial of this action much of the evidence concerned a house and property at 30 Clifton Street, Millswood in the State of South Australia (‘Clifton Street’). In February 1997 Mr Buch and Ms Reeves purchased Clifton Street as tenants in common. They lived there together in a de facto relationship as defined by the De Facto Relationships Act until Mr Buch left on 28 May 2001. They lived there together for about four years and three months.
Mr Buch sought a monetary order which he submitted would reflect Ms Reeves’ cash contribution to the purchase of Clifton Street, the payment by her of all mortgage repayments on the borrowings taken to effect the purchase, and what he submitted was his ‘contribution’ to Clifton Street.
Mr Buch is a carpenter, and during the time that he was living with Ms Reeves at Clifton Street he performed certain work there at weekends and in the evenings. He demolished a shed at the rear of the property and partly erected a shed/workshop in its place. He performed certain renovations in the interior of the existing house. Finally, he commenced work on an extension to the rear of the house. That extension was only partly built when he left Clifton Street at the end of May 2001.
At trial a Quantity Surveyor was called on behalf of Mr Buch. His evidence was that he had costed the work he had been told that Mr Buch had done at Clifton Street. He costed labour and materials for that work together, but not separately. Following a site inspection on 5 September 2002 he assessed the works at $42,751.
At the start of the trial Mr Buch’s case was that as at July 2003 there existed equity in the Clifton Street property to the extent of $174,000. That equity was said to represent a value of $290,000 less the then outstanding mortgage liability of $116,000. From the sum of $174,000 Ms Reeves should be credited with a sum of $25,000 she had contributed in cash to the purchase of Clifton Street and a further sum of $48,400 which she had paid by way of mortgage repayments. Mr Buch should be credited with a sum of $42,751, said to be the assessment of the cost/value of the works he had performed at Clifton Street. That would leave a remaining equity of $57,849. It was submitted that Mr Buch should have half of that remaining equity plus $42,750. That would produce a sum of $71,675 and I was told by Mr Buch’s counsel that Mr Buch sought an order that Ms Reeves pay such a sum to him. Mr Buch would transfer his interest in Clifton Street to Ms Reeves such that she would be the sole owner of Clifton Street.
At the end of the trial Mr Buch’s counsel submitted that some lesser monetary sum might be justified on the evidence. He submitted that I might take into account a sum of $20,000, which he submitted would reflect some evidence that such a sum would be required to be expended by Ms Reeves to rectify certain of the building works, in particular parts of the work that did not comply with various building code requirements. Mr Buch’s counsel further submitted that I might make a further modest adjustment downwards to reflect a few letters that Ms Reeves had written which related to investment/rental properties owned by Mr Buch, some assistance she gave to him in the preparation of his income tax returns in relation to those properties, and cleaning she did at one of the properties on one day. In his final address Mr Buch’s counsel submitted that such contributions might be valued at $4,000. There was another minor adjustment. A schedule I was given during his final submission indicated that the total which I might order to be paid to Mr Buch taking account of the above matters would be $56,507.
Ms Reeves’ case at trial was that the work Mr Buch had done at Clifton Street contributed no value to Clifton Street. Furthermore, it was Ms Reeves’ evidence that when Clifton Street was purchased the parties had agreed it would be her property. She said that it was known, understood and agreed that she alone would contribute cash towards the purchase of Clifton Street; that she alone would meet all repayments under the mortgage which was entered into to effect the purchase; and that Mr Buch would pay to her half the mortgage repayments as rent whilst he lived with her at Clifton Street. Ms Reeves’ evidence was that she agreed to Mr Buch’s name being on the title (and on the mortgage documents) because the lender would not have provided the required finance if Mr Buch’s income and the security that it provided to the lender was not offered by both Mr Buch and Ms Reeves together. Ms Reeves’ evidence was that Mr Buch never honoured his agreement to pay half the mortgage payments by way of rent whilst he lived at Clifton Street. In addition, she said that notwithstanding the fact that Mr Buch made certain contributions to the payment of certain of the outgoings relating directly to the property (such as council rates, land taxes, and water and electricity rates), his contributions towards such payments were sporadic and overall were less than her contributions to such recurring expenses during the time that they lived together at Clifton Street. Furthermore, she said that she performed most of the homemaking duties at Clifton Street and her contribution to the domestic expenses (such as food and groceries) for both of them far exceeded Mr Buch’s contribution for such items.
Ms Reeves’ case at trial was that, based on this evidence, I should order that Mr Buch transfer his interest in Clifton Street to her, upon which transfer she would agree to indemnify Mr Buch for his liability under the mortgage.
(I have just set out in general terms the cases advanced at trial by Mr Buch and Ms Reeves. During the trial I discussed with both counsel the pleadings of each party. I discussed the difficulties I had in understanding the relief sought by Mr Buch in his Statement of Claim, and later in the Amended Statement of Claim. I also referred to a difficulty I had with the prayer for relief in Ms Reeves’ Counterclaim. An amendment to that was sought and allowed during the trial. It is not necessary here to go into the detail of the pleadings, the amended pleadings or my discussions with counsel.)
The parties
Mr Buch and Ms Reeves gave evidence at trial about the time they lived together in a de facto relationship. Much of their evidence was, at least ultimately, not in dispute. Where their evidence did differ on important matters I prefer the evidence of Ms Reeves. I consider that Mr Buch was a very bad historian as to important matters and as to matters of detail. I consider that a lot of his evidence was an unreliable basis upon which to make findings of fact, particularly where his evidence differed from that of Ms Reeves. I consider that he gave some evidence which he knew not to be from a recollection of the events but from a reconstruction of them to suit his case.
I make some allowances for my assessment of the plaintiff, and of his credibility and his reliability, on account of the conclusion I reached during his evidence that he was not particularly sophisticated or particularly intelligent. Those allowances do not compensate for the overall view that I formed of the plaintiff that his evidence was an unreliable basis for any important findings of fact, except where his evidence was supported by some objective evidence or by the evidence of Ms Reeves.
I was impressed with Ms Reeves’ evidence and the manner in which she gave it. I consider that she had a good recollection of the events of which she gave evidence. She was prepared to say when she had no memory of a particular topic and when she considered her memory was not sufficient to speak confidently of certain facts. I consider that Ms Reeves gave her evidence truthfully and that her evidence is a reliable basis upon which I can make findings, particularly findings on important matters where her evidence differed from that of Mr Buch.
It is convenient to refer here to a particular aspect of the case.
In his Statement of Claim Mr Buch sought an order that Ms Reeves deliver up to him certain personal property of his, including his taxation and other personal financial records. In his evidence in chief he alleged that he kept such records in a filing cabinet in the shed at the rear of Clifton Street. He left those documents there when he left Clifton Street at the end of May 2001. They have never been returned to him. He said that he did not have those documents to refer to in preparation for trial or during the presentation of his case. He said all his cheque stubs and receipts were left at Clifton Street. In the plaintiff’s Opening and in his evidence-in-chief Mr Buch said that he paid all recurring expenses (being rates and taxes) in relation to Clifton Street. No documentary evidence was tendered during his evidence in chief to support that. In cross‑examination he seemed to accept that it was not until 1999 and thereafter that he made more than sporadic payments towards such outgoings. At the conclusion of his cross-examination I was informed that he had, over-night, found some cheque butts and bank statements at home (Exhibit P20). Those cheque butts related to a period between December 1997 and February or May 1999 and related to a cash management trust account owned and operated by Mr Buch. They were said to disclose some payments made by Mr Buch in relation to recurring expenses for Clifton Street. When asked about those documents it became apparent that there were other documents relating to such expenses that he had seen the night before. Mr Buch was asked this in cross-examination:
QLooking at the cheque stub of 17 August 1998, which reads ‘Mack Plum’ that’s a reference to Mack Plumbing, is that correct.
AThat’s correct.
QHow do you identify that that related to the Millswood property rather than work that you had done elsewhere.
AI have an invoice that coincides with that date and that amount.
QHas that invoice been produced.
ANo.
QWhy not.
AIt was left at my home last night. I looked at it last night. I definitely have one. I definitely sighted that last night and it can be produced.
HIS HONOUR
QWhy didn’t you bring it in.
AI was in a hurry and I have all these documents that I didn’t bring in. I ran out of time.
XXN
QHow did you suddenly find these documents last night.
AI was just - after the cross-examination, I was sure that I had records somewhere that I needed to produce. I didn’t hold them back. I just went through my filing cabinet again and subsequently located them.
QHaven’t you been asked on a previous occasion to produce all relevant documents relating to your expenditure on the Millswood property.
ABy my solicitors, yes.
QWhy didn’t you find these documents that you found last night when you were originally asked to look for them.
AWe’ve only just moved house and I think, in the move, they were put in the back where the cellar in the house is - put in the back room there and they weren’t located. They were put away. My wife filed them.
HIS HONOUR
QWhen did you move.
AApril this year.
XXN
QWeren’t you asked to produce documents which are relevant to these proceedings in September or early October last year.
AYes.
QWhy didn’t you produce these documents that you have now found at that time.
AI had come to the conclusion that all of my documents were left at the Millswood property and they weren’t to be returned, so I was sort of under - I just thought I didn’t own them. I wasn’t in possession of those documents from the period ’97 to 2001. I had no taxation records at all.
HIS HONOUR
QThe documents you produced last night -
AI did have one folder which was found in the move. We had all our things thrown into a shed when I went to the property at Lancelot Avenue.
QYou found a folder in the move.
AYes.
QBut you didn’t give those to your solicitors until this morning.
AI didn’t even know I had them until I started looking around.
Ms Reeves denied that she ever removed any documents from the filing cabinet in the shed. Her evidence was that some of her documents were in a concertina-type file and were stored in that filing cabinet. She said that after Mr Buch left she noticed that the filing cabinet had been broken into and that two drawers were missing. Her documents in the concertina-type file were missing.
During final submissions Ms Reeves’ counsel submitted that I might find that some unknown person had broken into the shed at some time after Mr Buch left and had stolen certain items from the filing cabinet. Although Mr Buch’s case earlier in the trial had been that Ms Reeves had taken certain of his documents (or at least refused to return his documents that were in that filing cabinet) Mr Buch’s counsel’s final submission was that Mr Buch would adopt Ms Reeves’ counsel’s submission that some unknown person had stolen the documents.
In view of Mr Buch’s evidence about finding documents during the trial at his home I consider that Ms Reeves’ counsel’s submission was a charitable one. Because of it I am not prepared to make a finding adverse to Mr Buch, but I consider that his explanation as to his finding of documents at the end of his evidence in chief and cross-examination, and then not bringing to court all the documents he found was at the least unsatisfactory. It has had some effect on my overall view of his reliability as a witness, but not on his credibility.
During addresses I asked both counsel whether they made any submission as to whether either of their cases were compromised by any ‘missing’ documents. Neither submitted that their cases were compromised. However, presumably certain documentation could have been generated from banks and other places, including service utilities, which may have helped establish which party paid the rates, taxes and other expenses for Clifton Street. That would have been of some assistance to me in resolving those matters. In the event I have some less than satisfactory oral evidence from both parties as to those matters, supplemented to a very limited extent by some cheque butts from one of Mr Buch’s accounts. The latter has not assisted me much in determining these matters with confidence.
Evidence and findings
In June 1982 Mr Buch had purchased a property at 5 Hutt Place, Salisbury (‘Hutt Place’) in his name only. In 1982/1983 Mr Buch had purchased vacant land at 1 Whelstone Court, Salisbury Downs (‘Whelstone Court’). In 1986 Mr Buch married. Also in that year he commenced work in a carpentry business in partnership with his brother. He would work in that partnership until November 2001 (after the end of his de facto relationship with Ms Reeves).
In 1994 his wife purchased a property at Magill in her name only.
Two children were born to Mr Buch and his wife. As at March 1996 their son was aged four years and their daughter was aged ten months. Mr Buch separated from his wife on 19 March 1996.
Mr Buch and Ms Reeves met at the end of March 1996.
In the months of April, May and June 1996 a relationship between Mr Buch and Ms Reeves developed. During that time Mr Buch was living with a friend of his at Everard Park. Ms Reeves was living at a house on The Esplanade at Henley Beach South. She had been there for about two years. Early in 1996 she had sold an interest she had in that property. She had received a sum of $80,000 for that interest. She had deposited those moneys in an investment account, although in early March 1996 she spent $22,000 of the money to purchase a Suzuki Vitara. At the time she met Mr Buch she was renting at the Henley Beach South property.
Ms Reeves was due to go on a business trip to Egypt at the end of June 1996. I find that Mr Buch told her that he was having difficulty meeting his share of the rent at the house he was sharing with a friend at Everard Park. I find that Mr Buch had been told by his friend that because he was not meeting his share of the rent he should look for alternative accommodation.
I find that Ms Reeves asked Mr Buch if he had the financial ability to rent premises of his own. When he said he did not Ms Reeves said that it would be a suitable arrangement to her if he temporarily moved in to the place she was renting at Henley Beach South while she was away. She said that would suit her partly because there was someone else renting at those premises whom she did not wish to be left alone there whilst she was in Egypt. I find that Mr Buch accepted that arrangement.
Prior to leaving for Egypt Mr Buch asked Ms Reeves if she could lend him some money. I find that she lent him between $1,000 and $1,500. I find that that request was made and granted because of Mr Buch’s then constrained financial situation. I find that he never repaid that loan.
When Ms Reeves returned from Egypt in the latter half of July 1996 I find that she found that Mr Buch had not only moved some of his own belongings into the residence at Henley Beach South, but also some of his young children’s belongings.
I find that Ms Reeves asked Mr Buch whether, if he intended to stay at Henley Beach South, he would pay some of the rent. He said that he was not in a position to contribute to rent at Henley Beach South and I find that he did not do so during the whole time that the parties lived together at Henley Beach South.
I find that the parties commenced a de facto relationship within the meaning of the De Facto Relationships Act in the last half of July 1996 at the premises at Henley Beach South.
I find that Ms Reeves paid all the rent for herself and Mr Buch at Henley Beach South. During the time the parties lived together at Henley Beach South I find that Ms Reeves and another person who lived at those premises contributed to the food that was consumed by those two persons and Mr Buch and by Mr Buch’s children when they were there. I find that Mr Buch’s contribution to food was occasional and far less than the contributions made by Ms Reeves and the other person. I also find that Ms Reeves also purchased some clothing for Mr Buch. I find that, in addition, she supported Mr Buch’s children financially and otherwise.
I find that Ms Reeves had certain items of furniture which she had accumulated at the Henley Beach South property. I find that Mr Buch had no furniture of his own.
I find that Mr Buch had ‘access’ to his two young children every other weekend. The two children spent that time at the house at Henley Beach South. I find that in the months that followed Ms Reeves and the children developed an attachment to each other. Thereafter that attachment grew and was beneficial to the children. I find that Ms Reeves cared for the children both practically and emotionally. I find that she expended her own money on and for the benefit of the children. I find that she spend at least $6,000 during the course of her relationship with Mr Buch when they were living at Henley Beach South and at Clifton Street. I find that her caring and loving approach to and her relationship with the children continued to develop and grow throughout her relationship with Mr Buch. I find that her homemaking and ‘parenting’ contributions towards Mr Buch’s very young children for the nearly five years that they were together, in the early developmental years of both children, were very significant. I must consider those contributions in deciding whether to make an order for the division of property and, if so, the terms of the order.

Between March 1996 and March 1997 Mr Buch and his wife were attempting to resolve matters relating to the dissolution of their marriage. A settlement was ultimately reached by March 1997 and was effected in that month. The effect of that settlement was that Mr Buch would be the sole registered proprietor of Hutt Place and Whelstone Court; he would transfer his interest in another property to a brother of his wife for the payment of a certain sum to Mr Buch; and that he would pay $80,000 to his former wife. I find that Mr Buch paid the sum of $80,000 to his former wife using finance he raised by a mortgage over Hutt Place and Whelstone Court. I find that following refinancing and the payment of $80,000 to his former wife the mortgage liability over those two properties together was $135,000. I further find that it was a condition of that refinancing that both the Hutt Place and Whelstone Court properties were to remain tenanted and that the rent from both of them was to be applied to repay the mortgage. I find that Mr Buch would have been unable otherwise to obtain finance on those two properties in order to raise the $80,000 that he was bound to pay his wife as part of the settlement of their matrimonial affairs. I further find that as at February/March 1997 Mr Buch’s financial position was such that he had little, if any, surplus money after paying expenses on the two rental properties at Hutt Place and Whelstone Court, paying child support payments of about $1,200 per month which had commenced at least by September 1996 (although Mr Buch at first said he commenced such payments in May 1996 when they were first due); paying for his own clothes and other personal expenses; and making a very small contribution towards food at Henley Beach South. I make that finding taking into account the money Mr Buch received from his brother-in-law from a property at Vine Street, Prospect.
In early 1997 Mr Buch and Ms Reeves located the house at Clifton Street. I find the house was in a liveable condition and, although old fashioned, it was neat and tidy and everything in it worked. It appeared to be sound and it was weatherproof. Mr Buch and Ms Reeves discussed purchasing the property. I find that they agreed to purchase it on the basis that the property would belong to Ms Reeves although they recognised that their circumstances were such that his name would need to be on the title as a tenant in common. I find that that was agreed between them because, and only because, it was recognised by both of them that Ms Reeves did not have sufficient borrowing capacity on her salary alone, and that by utilising Mr Buch’s name and income they could satisfy the lender to approve the necessary borrowings.
$130,000 was borrowed to purchase Clifton Street. A mortgage was arranged through the CPS Credit Union with whom Ms Reeves already had accounts. She also then worked in the building in which that Credit Union had offices. Settlement on Clifton Street was effected on 21 February 1997 when $130,000 was made available under mortgage. The mortgage was in the name of both Mr Buch and Ms Reeves. The purchase price for the Clifton Street property was of the order of $145,000. Ms Reeves contributed $25,000 cash to effect the purchase of Clifton Street, to pay the expenses associated with the purchase, and to purchase some carpet and to have it laid within the house. After she had paid that sum she had about $2,000 left in her CPS investment account. I am unable to find what Mr Buch had by way of funds at that time, if he had any. I am satisfied and find, however, that he had little cash available, or if he did, he did not offer it. I consider that his lack of funds is consistent with the agreement I have found the parties had reached as to whom Clifton Street would belong.
I find that Mr Buch and Ms Reeves agreed that not only would the property be Ms Reeves’ (although his name would be on the title and on the mortgage for the reasons to which I have referred) but they further agreed that Ms Reeves would pay all of the mortgage repayments. I am satisfied that Mr Buch knew that she would meet the mortgage repayments of $220 per week by direct debit from her wage. I find that it was further expressly agreed that Mr Buch would pay to Ms Reeves the sum of $110 per week (being half the mortgage payment) as rent for him to live with her at Clifton Street. I find that Mr Buch never honoured that agreement.
I find that Ms Reeves was the sole contributor to the house and contents insurance that has existed in respect of Clifton Street ever since its purchase in February 1997. Those premiums were made by direct debit from her salary.
I find that in early 1997 there was some general discussion between Mr Buch and Ms Reeves as to the payment of recurring expenses that related directly to Clifton Street, and other living expenses. A joint CPS Credit Union account was opened by the parties. It was envisaged that both parties would contribute to that account and rates and services for Clifton Street and normal household expenses would be paid from it as and when they arose. I am satisfied that there was no clear agreement as to the contributions each would make to this joint account but it was the general understanding of each that their contribution would be equal.
The evidence as to who actually contributed to that account, and how payments were made from it, is not particularly satisfactory or clear. I am satisfied, however, and find that Ms Reeves made regular and significant contributions to that account while it existed. I find that Mr Buch’s contributions were sporadic and that when he did make a contribution it was often to meet a particular expenditure that was then required. Such expenditure was mostly to the benefit of both parties but sometimes to his own sole benefit.
I further find that during the whole of the time the parties lived at Clifton Street Ms Reeves used her own financial resources to purchase the majority of the groceries that were used by the parties and by Mr Buch’s children when they stayed at Clifton Street. I also find that for the same period Ms Reeves did the vast majority of household tasks. I find Mr Buch only did the vacuuming.
During their time together Mr Buch and Ms Reeves each owned motor vehicles. Although the evidence is sparse on the topic it appears that each used his or her own motor vehicle or vehicles and, so far as I am able to find, financed their purchase and paid their running costs. I do find, however, that Mr Buch used Ms Reeves’ motor vehicle when transporting his children as his vehicle did not have appropriate child restraints. Mr Buch claimed the cost of purchasing his vehicles and their running costs as a business expense.
When the parties moved into Clifton Street Ms Reeves took all her furniture from Henley Beach South. Mr Buch took no furniture because he owned none. He constructed a bed whilst they were living at Clifton Street and that bed was put in their bedroom and is still there. When that occurred Ms Reeves’ bed was moved to Mr Buch’s property at Hutt Place where it remains.
Also during their time together both parties had some modest superannuation and Mr Buch owned a small number of public company shares of a modest value.
Between the time they moved to Clifton Street in February 1997 and late 1998 I find that Mr Buch did some renovations to the interior of the house at Clifton Street. I find that he also demolished an existing shed and that he had the major frame of a new shed in place by late 1998. One of Mr Buch’s tax returns states that he acquired a shed on 1 July 1998 for $1,085. I find that the shed referred to in all of his tax returns thereafter was the partly build shed that Mr Buch erected on the property at Clifton Street. I find that Mr Buch told Ms Reeves that he wanted to construct a shed so that he might use it as a workshop. I find that he did use it as a workshop in the course of his carpentry partnership business, in the renovations that he did inside the house and eventually in relation to the extension he started at the rear of the house. I find that in each of his taxation returns from the financial year 1997-1998 until the financial year 2001-2002 he fully depreciated the shed on the basis that there was no private use associated with it. No credible explanation was offered as to why Mr Buch continued to depreciate the shed for at least a year after he left Clifton Street.
Photographs were tendered at trial which showed some of the internal renovations performed by Mr Buch. In practically all respects they were either unfinished, displayed less than good workmanship, and in some cases constituted only temporary work. Much of this was accepted by Mr Buch in his evidence. His evidence as to whether council approval was required for any of this work was vague and unconvincing. The evidence is insufficient for me to find whether the ‘structural’ alterations he made between the living room and the kitchen needed council/building approval. I am not satisfied that I can make a finding that that alteration did not.
In 1999 Mr Buch commenced work on an external extension to the rear of the house premises at Clifton Street. I find that he knew when he started that work that he was not permitted to construct the extension without first obtaining council approval for the extension and for the building works constituting it. I find that he had also known of a similar requirement before he had started building the shed which had been partly constructed by late 1998. When asked why he did not obtain approval to the extension Mr Buch said: ‘I just never had the time I suppose, at that time’. He dissembled by saying that he had drawn plans but never lodged them with the council, but he had told Ms Reeves to take them in. He added that he made sure that the council could see what he had done. I reject his evidence that he made sure that the council could see what he had done.
It transpired that he had asked Ms Reeves in early May 2001 to take an application into the council. This was after he had been working on the extension on and off for about two years and just before he left Clifton Street. Ms Reeves said that the application he gave her (Exhibit P25) was unsigned and undated when he gave it to her. She had signed it, dated it 2 May 2001, and had taken it to the council shortly after she was given it.
Exhibit P25 has some curious features, not the least of which is that despite the plaintiff’s Opening that council approval ‘is capable of being obtained and that is central’ to my proper understanding of the expert evidence it was not sought to be tendered at trial until the very end of Mr Buch’s re-examination. Accordingly, Mr Buch was not asked questions about it (other than whether he thought the date on it was the 7th or 5th May 2001). There was no explanation, therefore, why the extension at the rear of the house was referred to in the application as ‘proposed new office’ and why the development cost was put at ‘$4,000’. I infer that Mr Buch wrote those parts of the application form and attached plan. It may have been relevant to know where Mr Buch obtained a figure of $4,000, especially when his quantity surveyor had costed the extensions at sums far is excess of that. Later evidence may also have been relevant to that issue. A building consultant called on behalf of Ms Reeves said in evidence that at the time this extension was being constructed, for any building works in excess of $5,000 constructed by an owner/builder or by a builder with a building contractors licence professional indemnity insurance must be certified to exist in order to protect property owners, including future owners. It would be unfair for me in the circumstances to draw inferences adverse to Mr Buch’s credit where he has not had the opportunity to comment on these issues and I do not do so. It is sufficient for present purposes that I find that the external extension and the shed were partly built by the plaintiff when he knew that he required council and building approval and when he knew that he did not have it. I suspect, although I cannot find that it is probably the case, that Mr Buch knew or suspected that it would not be approved. I find that he had ceased work on the extension in January 2001. Perhaps he thought that he should do no more work until an application had been made. It was not until some months later, and a few weeks before he left Clifton Street, that he sent Ms Reeves into the council with an application.
I am satisfied and find that in a number of important respects certain parts of the extension were constructed in breach of certain building codes. Whilst it was hinted in cross-examination of Ms Reeves that there were ‘only’ four areas which might be said to breach building codes those four areas related to the stump and bearers for the extension; the floor frames; the roof frames and roof construction; and building an extension over a waste water outlet. I find that in each of these respects the breaches related to matters of construction, both separately and together, that were fundamental to the whole fabric of the construction.
I find that Mr Buch partly built the extension in breach of a building code that requires that where something is built over an earthenware sewer/water pipe such pipe must be replaced by PVC pipe. Mr Buch had not done that. His suggestion in evidence that he intended to terminate the earthenware waste pipe from the laundry after he had relocated the laundry was ridiculous. The evidence establishes that the earthenware pipe running underground along the rear of the house not only took the waste water from the existing laundry, it also took it from the kitchen. Even if the laundry was relocated (Ms Reeves had not been told where it was going) and the earthenware pipe was terminated, there would be no way of removing waste water from the kitchen. I am satisfied that council would have rejected this aspect of the proposed extension. I also consider that there is a very real possibility that council would not approve the foundations used by Mr Buch and would require strip footings, which were presumed to have been used by the quantity surveyor.
I am satisfied and find that council approval would not have been granted retrospectively for the works forming the extension to Clifton Street.
I am convinced that all of the opinions expressed by Mr Jankovic in his report (Exhibit P6(a)) are justified. I find that all of the work performed by Mr Buch was of poor quality and had the appearance of either having been carried out by a handyman or by a poorly trained tradesman. All of the work done will require extensive work to rectify it, to make it comply with the building codes, or to complete it. I accept Mr Jankovic’s opinion that ‘to now rectify the work so as to be safe and habitable and so as to comply with all the building rules, and to complete the works, ... will cost at least as much as has been quoted by the estimator (quantity surveyor) to construct the works’. Further, I agree with Mr Jankovic and I find that the incomplete works carried out throughout Clifton Street do not add value to the property because of the concerns expressed by Mr Jankovic in his report, and because of the cost of rectifying and completing the works.
I find that it is probable that the extension will have to be demolished, and the house reinstated to what it was before the extension was commenced.
I consider that my findings as to the value of the work done by Mr Buch, and the probable fate of the extension, are consistent with valuations of Clifton Street prepared by Mr Butcher (Exhibit P1) and by Mr Viner (Exhibit P30).
Mr Wayne Butcher was of the view that his valuation ‘should consist of the original residence only and should take into account the unfinished nature of the home and the various repairs required to fix the guttering at the rear of the property’. He wrote that if it was decided ‘that the extension is able to be kept then he is prepared to adapt the valuation accordingly. However, on existing evidence, I believe it adds no value and in fact is a nuisance’. Mr Butcher’s view was that the property was poorly presented and required work. It appeared to him ‘to be a legal problem as to the usefulness of the unframed area at the rear’ and that Ms Reeves ‘could have a claim against the other party for (a) demolition, (b) reimbursement of money spent and (c) costs of restitution of the rear gutter to the original residence’. Mr Butcher’s market valuation of $290,000 excluded any value for the extension and did not include a demolition fee for the extension ‘which would further reduce the value’. He considered that ‘a restitution fee of the rear, including the demolition, to be around $4,000’, but that that could be decided by tender. On a summation approach Mr Butcher concluded that the land was valued at $230,000 and the buildings were valued at $60,000. That value attributed to the buildings at Clifton Street indicates to me that the quantity surveyor’s cost of over $42,000 for Mr Buch’s work can have no bearing on the value of Clifton Street. Mr Butcher’s valuation was at 3 April 2003.
Mr Geoff Viner wrote on 14 July 2001 (about six weeks after Mr Buch had left) that:
‘a timber framework has been installed for an extension. The timbers have been exposed for a considerable time and there would now be doubts about its structural integrity. The design is questionable as it only provides 35 square metres of extra living space and is not of an open plan style which is considered desirable. Given its condition and lack of design considerations the timber frame should be removed and a verandah or new extension erected.’
He wrote further:
If this house were to be placed on the real estate market and achieve a normal expectation of price for this style and size of house, repairs estimated at $50,000 would have to be made. If this were not to be done, then a discount of more than this amount would apply.
Further, he wrote:
The property was purchased four years ago for $142,500 and median prices for bungalows in the Unley council area have increased by 60% since the property was purchased. This would ordinarily allow for an adjusted value of $228,000 but the lack of maintenance and dismantling the ill conceived additions indicate that $200,000 would be a more likely figure upon which to rely. This figure is backed up by direct comparison with other Bungalow styled dwellings that have sold nearby.
Conclusions:
This report has been deigned to establish a market value for a dwelling at 30 Clifton Street Millswood, to help in devising strategies for the possible sale of the property.
The Market Value assigned to the property is $200,000. Facts described and the valuation itself were current at the time of inspection on the 25 June 2001.
The quantity surveyor called on behalf of Mr Buch did not attempt to value the work that had been done. That witness costed the work that he was told had been done by Mr Buch on the basis that all council and building approvals had been obtained, that the work had been carried out in a proper and workmanlike fashion, and that suitable and proper materials had been used in all respects. I find that none of these had occurred or were done or used. The witness did not attempt to comment on the quality of the workmanship or of the materials. Furthermore, he gave an overall cost assessment of the work done which included both labour and materials components. He did not separately quantify the cost of labour and the cost of materials.
There are a number of matters that I consider prevent me from relying too much upon the evidence he gave as to costs, even if the works had been approved, suitable and proper materials had been used, and good workmanship had been performed.

First, I find that practically all the materials used by Mr Buch were left-over materials that Mr Buch had obtained from building sites in which his partnership had previously been involved. Accordingly, he did not pay for such materials. I infer that clients of the partnership who engaged the partnership to do construction works for them had paid for those materials. The quantity surveyor referred at one point of his evidence to a costing for which 60% represented labour and 40% represented materials. That was for one particular example of the construction of stud framing for a partitioned wall. That is the only evidence I have as to any split between labour and materials.
Secondly, it became clear during the trial that included in the quantity surveyor’s figures is a not insignificant amount of work that was not performed by Mr Buch, but was performed by his father and brothers after Mr Buch left Clifton Street in late May 2001. I find that Ms Reeves paid at least $7,000 in order to secure the building works at the rear of the house, to make the premises waterproof, and to rectify and/or secure some of the works. Photographs were tendered (Exhibit D17) which I find were taken by Ms Reeves in June and July 2001, just after Mr Buch had left. Significant differences are seen in those photographs compared to the photographs taken by the quantity surveyor over a year later (Exhibit P6(b)).
Finally, the costings were done on prices applying at the end of 2002, rather than for when the work was done.
Clifton Street was purchased for about $145,000. $130,000 was borrowed. As at 1 July 2001 about $123,400 was outstanding on the mortgage and as at 2 July 2003 about $116,000 was outstanding on the mortgage. As indicated previously Ms Reeves has made and continues to make all mortgage repayments on the property. She has lived at the property since May 2001. As to the current value of Clifton Street I have a valuation of Mr Viner of $200,00 as at 25 June 2001 and a valuation of Mr Butcher of $290,000 as at 3 April 2003. Neither valuer gave oral evidence at the trial. I am in no better position to accept one over the other for that reason. Both valuers have qualified their valuations. Clarification of some of the statements in both valuations, particularly that of Mr Butcher, would have been helpful. Perhaps the true value is somewhere between the valuations of Mr Viner and Mr Butcher. I am not prepared to find on the evidence that the value of Clifton Street is greater than $250,000. It may well be less.
I find that it has no greater value than $250,000 assuming that the work comprising the extension built by Mr Buch is demolished and the rear of the house is re-instated. That will cost at least $4000. Work will also be required to repair the earthenware sewer pipe which I find Mr Buch damaged at some time during his work there. The value of the rear shed and how it relates to the value of the property is problematic. Neither valuer seems to have addressed that issue. I find that the shed does not comply in important ways with building codes. I have taken that into account in concluding that the house and property has no greater value than $250,000.
I now refer to Mr Buch’s taxation returns (Exhibits P4, P5, and D16). Those exhibits indicate that at no time in the six financial years from 1 July 1996 to 30 June 2002 did Mr Buch’s investment/rental properties at Hutt Place and Whelstone Court produce an excess of income over expenditure. I make such a finding even when taking into account non-cash items of expenditure such as writing off the cost of building Whelstone Court (there was evidence that the cost of $129,720 (see Exhibit P5, 1997-1998 return) overcapitalised the property) and depreciation of plant and equipment. This is certainly the case if the figures for the whole period Mr Buch and Ms Reeves were together are aggregated. The tax returns also disclose that from and including the financial year 1996-1997 until and including the financial year 2001-2002 Mr Buch had a significant income from his business partnership. The distribution from it to him in 1996-1997 was about $57,000; in 1997-1998 about $56,000; in 1998-1999 about $39,500; in 1999-2000 about $61,000; in 2000-2001 about $47,000; and in 2001-2002 about $85,500. There were business expense deductions in each of these financial years but there was still a significant taxable income in most years. I was informed by Mr Buch’s counsel in his address that the tax returns indicated what payment Mr Buch received upon the dissolution of the partnership. I can only assume that was the $22,750 referred to in Mr Buch’s return 2001-2002.
At all relevant times Ms Reeves worked as a consultant at a travel agency. As at February 1997 her office was in the CPS Credit Union building in Waymouth Street. During the period of the relationship she moved to a branch at Norwood. Ms Reeves was paid a salary. At the time she and Mr Buch commenced living together that salary was of the order of $25,000 per annum. Her salary at the time of trial was $40,000 per annum plus bonuses, which bonuses could be up to $5,000.
Since the relationship between these parties terminated Mr Buch married. That occurred in January 2002. Mr Buch and his wife purchased a property at Glen Osmond on 7 April 2003 for a sum of about $531,000. It was purchased entirely on finance. A house and property his wife owned before their marriage was refinanced and Mr Buch refinanced Hutt Place and Whelstone Court. On 7 April 2003 Mr Buch’s borrowings on Hutt Place and Whelstone Court were increased to $232,000. I find that that was about an additional $100,000 on what were the outstanding borrowings on Hutt Place and Whelstone Court as at May 2001 when Mr Buch left Clifton Street. These commitments were entered into some months before trial.
I find that since May 2001 Mr Buch sold the vehicle he had when he was with Ms Reeves. He now owns a Toyota Prado which he purchased for $40,000. All of the vehicles that Mr Buch had during the time he was with Ms Reeves were depreciated by Mr Buch through his business partnership and their running expenses were claimed as tax deductions. I also find that Mr Buch depreciated such tools and equipment that he used when he did the renovations, the extension work and the work in constructing the shed at Clifton Street. As earlier indicated he fully depreciated the shed at Clifton Street, including in the financial year 2001-2002.
There was evidence at trial about trips that Mr Buch and Ms Reeves took overseas and within Australia during the time that they were together. I find that because Ms Reeves was a travel consultant Mr Buch had the benefit of overseas trips with Ms Reeves, and one trip on his own, at greatly reduced rates both for air travel and for accommodation. When they travelled together they would both enjoy discounted airfares of up to 75 per cent off normal fares. I find that Mr Buch also enjoyed at least one overseas trip and one interstate trip with Ms Reeves at no cost at all to him for travel because Ms Reeves had been awarded free air tickets. I find that Mr Buch contributed no more than one half share of air fares, accommodation and living expenses whilst they were away on trips, and possibly less in some cases. I find that on one trip to the United States Mr Buch enjoyed a cruise at Ms Reeves’ expense whilst she attended a conference, and that he never repaid her for what she had put on her credit card so that he could take that trip.
I find that certain monies Mr Buch paid to the travel agency on one occasion in respect of a trip to the United States did not include a sum for rent that he had promised to pay (but had not paid) to Ms Reeves during the time that they were living together at The Esplanade, Henley Beach South.
Conclusions
The Full Court of the Supreme Court of South Australia has recently referred to the proper approach for the court to take when considering an application under ss10 and 11 of the De Facto Relationships Act. In Hogg v Roberts [2003] SASC 410 the Chief Justice wrote (at page 2-4):
The Judge was required, as far as practicable, to resolve all questions about division of property and to avoid further proceedings: s 12.
The Act is in terms similar to legislation enacted in other Australian states relating to the division of property as between de facto partners. However, there are differences from state to state. In particular, not all states have an equivalent to s 11 (1)(d). While decisions under legislation in other states provide helpful guidance, one must be cautious about their application if there is a difference in the relevant legislation.
My understanding of the Act is that the requirement to make an order that is “just and equitable” does not give rise to a general and unfettered discretion. First of all, the court is dividing property, not settling all outstanding financial issues as between the partners. Secondly, s 11 (1) indicates that the contributions referred to in that provision are important considerations in deciding what is just and equitable. The initial and primary focus must be on the property in question, contributions to that property, contributions to financial resources and then contributions by one party to the other and to the children.
However, the obligation under s 11 (1)(d) to have regard “to other relevant matters” means the contributions are not the only matter for consideration. It is to be noted that the court must have regard to “relevant matters”. I think that must mean matters relevant to a just and equitable division of property. The provision is not as wide as, for example, a direction to have regard to such matters as the court thinks fit.
Bearing that in mind, I consider that it is not the role of the court to use the division of property to remedy any justified grievances that one party may have against the other, or to compensate one party for disappointed or unfulfilled expectations. The focus appears to me to be on a just and equitable distribution of property, after considering primarily contributions of the kind identified by s 11 (1) of the Act. The task of the court is a narrower one than the task of the court under s 79 of the Family Law Act 1975 (Cth). The relevant considerations are more narrowly confined. Matters that are likely to be relevant are the length of the relationship and the immediate needs of the parties. I say “immediate needs” because the court’s focus is on the division of property. In deciding what is “just and equitable”, the needs of the parties at that time will be relevant. However, the court is not dividing property with a view to providing, for example, for the continuing maintenance of the parties, or taking into account their future financial prospects.
Other matters may be relevant. It would be dangerous to try to draw a line here in the abstract. I go no further than to say that the focus is on the just and equitable division of property, and not on an order that is fair having regard to all the circumstances surrounding, and everything that happened during, a relationship.
I agree with the observations made in decisions in other states that the court is not concerned with attributing fault for the breakdown of the relationship; that contributions as home maker and parent are not to be treated as inferior to material or financial contributions, they are to be taken into account in a substantial way; that contributions of a non-material kind are to be assessed in a broad way, rather than by reference to the rate of remuneration payable to commercial providers of such services, and that there is no reason to approach the matter on the basis of an assumption that an equal division is appropriate, unless there is good reason to depart from that position. I draw those propositions from the reasons of Gleeson CJ and McLelland CJ in Equity in Evans v Marmont (1997) 42 NSWLR 70 at 74. Although the legislation under consideration there was relevantly different, I consider that these basic principles apply to the Act.
In Parker v Parker (1993) 16 Fam LR 863 Young J suggested a four stage approach which will often be helpful. The four stages he suggested (at 870) are:
“(i)    to identify and value the assets of the parties;
(ii)    to determine whether any, and if so what contributions of type A or type B had been made by each partner;
(iii)   to determine whether in the circumstances the contributions of the applicant had already been sufficiently recognised and compensated for;
(iv)    to make the appropriate adjustment.”
Once again, he was concerned with different legislation, but the process he suggested is likely to prove helpful under the Act. However, I emphasise that this is simply one approach. In some cases a broader approach will work better. There is no need to take what might be called a narrow approach involving a careful tracking of income and expenditure, contributions made and benefits received. The legislation requires a reasonably broad and practical approach.
Between stages (iii) and (iv) it will be necessary to consider whether there are “other relevant matters” to be considered. It will also be necessary to bear in mind that the object is to divide property in a “way that is just and equitable”. As I have said, I do not treat that expression as opening up all aspects of the relationship, but it appears to me that the matters identified in s 11 (1) of the Act do not alone dictate the order to be made under s 10 (1). They are matters to be considered, they are important, but they will not necessarily be decisive.
What I have just said does not provide any solutions. Difficult questions will arise along the way. I have done no more than identify what seems to be the appropriate process of reasoning.
My initial and primary focus must be on the property in question, contributions to that property, contributions to financial resources and then contributions by one party to the other and to the children. In his case Mr Buch concentrated on Clifton Street in the way I have described in the introduction to these reasons. He submitted that even if I were satisfied that the work Mr Buch did at Clifton Street added no value to it that did not mean that the work he did could not be reflected in a division of the equity in that property in the way he contended for. I find that Mr Buch added no value to that property and in fact what work he did do probably detracted from its value, or at least from its current value in its current state. I have also referred to the fact that he used materials he had not paid for. I do not think that in those circumstances it could be said that by his work at Clifton Street Mr Buch made a direct or indirect financial contribution to the acquisition, conservation or improvement of the house and property at Clifton Street. Furthermore, I do not consider that it could be said that by his work he made a direct or indirect financial or non-financial contribution to the financial resources of Ms Reeves insofar as they are reflected in her interest in Clifton Street. It might be argued with some greater force that he made an indirect non-financial contribution to Clifton Street, in the sense that he took on legal obligations under the mortgage and incurred, potentially at least, other liabilities by virtue of his having an interest in the property as a tenant in common. I accept that he made a contribution in that sense, but I do not consider, on the findings I have made, that he made a non‑financial contribution in any other sense.
Mr Buch did, however, make some contributions by providing some limited number of household items, performing some useful labour outside the house (at the front and constructing the cubby house, although for that he used ‘left-over’ materials and presumably built it for the use of his own children) and by his contributions to recurring expenses and the ‘housekeeping’. In my judgment such contributions were limited and far outweighed by contributions of these types made by Ms Reeves.
Ms Reeves’ contribution to the acquisition, conservation and improvement of Clifton Street vastly exceeded that of Mr Buch. Furthermore, because Mr Buch and Ms Reeves reached the agreement which I have found they reached when they purchased Clifton Street, Mr Buch was able to satisfy his obligations to his first wife and to pay her $80,000. Without an ability to live ‘rent’ free at Clifton Street he could not have re‑financed his tenanted properties at Hutt Place and Whelstone Court. It is true that Ms Reeves’ direct contribution to those two rental/investment properties was small, even minimal. But the agreement she reached with Mr Buch enabled him to maintain those two rental/investment properties, to use them to meet his commitments to his first wife, and later to provide the means whereby he and his second wife could borrow sufficient funds with which to purchase the house in which they are now living for over $530,000. In my view that was a significant indirect contribution by Ms Reeves to the financial resources of Mr Buch.
Whilst it could properly be said that Ms Reeves’ direct contribution to Mr Buch’s rental/investment properties was minimal, in a sense so was Mr Buch’s. There is little evidence about what he actually did in respect of those properties other than to keep them and claim losses as tax deductions. That is a perfectly legitimate thing to do, but it indicates that Mr Buch himself did not do much to conserve or improve those properties during his time with Ms Reeves.
I have made findings as to the contributions each of the parties made to the recurring expenditure for Clifton Street and to the day-to-day expenditure for themselves and for Mr Buch’s children. I have also referred to the benefits obtained by Mr Buch in overseas and other travel by virtue of Ms Reeves’ employment. I have also referred to Ms Reeves’ homemaking and ‘parenting’ contributions that she made both generally, and in particular to Mr Buch’s very young children. I consider that each was significant and should be properly reflected in any orders I make.
Having regard to all of the matters to which I have referred in these reasons I consider that I should make orders for the division of property under Part 3 of the De Facto Relationships Act.
I am bound to divide the property of either or both of the de facto partners between them in a way that is just and equitable, by using a reasonably broad and practical approach. At the end of the relationship Mr Buch had real property which, on the evidence, had a total value of $265,000. The purchase of Clifton Street, with the very significant cash contribution and other financial contribution of mortgage repayments by Ms Reeves, allowed Mr Buch to retain those properties. They have now been used by him to finance the purchase of a house and property with his second wife for well over $500,000. For her part, Ms Reeves had Clifton Street, the value of which I have found not to exceed $250,000. She was, and is now, left with unfinished renovations inside the house and a useless extension to the rear of the house. These will cause significant problems for her.
I also take into account Ms Reeves’ greater contribution to the recurring expenses in relation to Clifton Street when the parties were together and her greater contribution to the living and other expenses of the parties. As indicated earlier, I must also take into account Ms Reeves’ significant contribution towards the children of Mr Buch.
In determining what is just and equitable I must also have regard to the fact that Ms Reeves has lived at the house at Clifton Street since the parties separated in May 2001. That has been offset by the fact that she has continued to be solely responsible for the commitments under the mortgage and she has paid all outgoings since May 2001. It is also offset by the fact that Mr Buch has been able to use his rental/investment properties to purchase accommodation for himself and his second wife.

I consider that it would be just and equitable to make orders which would allow for Mr Buch to retain the real estate property in his name (being Hutt Place and Whelstone Court) and for Ms Reeves to have the sole ownership of Clifton Street. This would have the effect of both parties having real property of similar value. I would not make any further orders dealing with any other property of either of the parties, but I indicate that the orders I will make are made in resolution of all questions about the division of property between Mr Buch and Ms Reeves. In my judgment, the orders I propose would be just and equitable as between the parties. If anything, I consider that they may favour Mr Buch.
Accordingly, I would order that Mr Buch transfer his interest in Clifton Street to Ms Reeves and that Ms Reeves indemnify Mr Buch as to any liabilities he has under the mortgage over that property.
I shall hear the parties as to the form of orders, any ancillary orders, and costs.

[2004] SADC 24

12 February 2004