Coles v Billing - [2004] SADC 142

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COLES v BILLING
Judgment of His Honour Judge Rice
15 October 2004
FAMILY LAW
De facto relationships - application for division of property - application for extension of time - relationship existed for three years - real property the only property in respect of which a division sought - property bought in the name of defendant - plaintiff claimed he had made a contribution to the purchase price by achieving a price reduction of $5,000 (the vendor was well-known to him) and also by providing $5,000 cash for the deposit - defendant denied either form of contribution.
Held - extension of time granted - found that plaintiff made $10,000 contribution - plaintiff unemployed for some of the time and provided some limited financial contributions - defendant always in employment and provided bulk of financial contributions, particularly as it related to mortgage repayments and ongoing expenses - non-financial contributions about even - property to be sold and net proceeds divided one-third to plaintiff and two-thirds to defendant.
De Facto Relationships Act 1996 ss 9(3), 10(1) and 11, referred to.
Hogg v Roberts (2003) 87 SASR 248; Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 (7th April 2004); Mallet v Mallet (1984) 156 CLR 605; Norbis v Norbis (1986) 161 CLR 513; Arnold v Dalton (2002) 84 SASR 482; Davey v Lee (1989) 13 Fam LR 688, considered.

COLES v BILLING
[2004] SADC 142
Introduction

This is an application for the division of property pursuant to the provisions of the De Facto Relationships Act 1996 (“DFR Act”). For reasons that are explained below, for all practical purposes, the property of the de facto partners consists of the equity in real property situated at 38 Princes Highway, Murray Bridge (CT Volume 5160 Folio 40 and Volume 3315 Folio 92). That property has an agreed value as at the time of trial of $148,000 (TP5). As at 28th June, 2004, the outstanding mortgage was $59,455.80 (see D120).
During the course of the relationship the Princes Highway property was bought in the name of the defendant, Ms Billing. That property remains registered in her name. The plaintiff, Mr Coles, lodged caveats on the titles. Ms Billing sought their removal on the basis that she wished to sell the property (it being on two titles). By order of this court on 29th May, 2002, Ms Billing was restrained from disposing of the net proceeds of sale of the property and required to pay the net proceeds into court. As events transpired, the property was not sold and awaits any division by this court. Ms Billing does not now live there. Ms Billing has rented the property from about mid-2002 (TP254). The property has been rented through agents and Ms Billing has received the net rent. It is rented until 7th January, 2005 at $160.00 per week (D130).
There is also an application by the plaintiff for an extension of time within which to bring these proceedings (Statement of Claim para.31, Amended Statement of Claim para.37).
Ms Billing represented herself during the course of the proceedings.
The positions of the parties to this application for division of property may be stated as follows.
The plaintiff’s case is that he made an initial financial contribution to the purchase of the Princes Highway property and thereafter made both financial and non-financial contributions such that the court should order an equal division of the net equity in the property.
The defendant’s position is that the plaintiff made no financial contribution initially and made little by way of later financial contributions and little by way of non-financial contributions. The defendant contends that the plaintiff should receive nothing (TP8, 281).
De Facto Relationships Act – principles applicable in present case
This application is made pursuant to s.10(1) of the DFR Act, which provides as follows:-
“10 – Power to make orders for division of property
(1)On an application for the division of property, the court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.”
The matters required to be taken into account for the purposes of such a division are set out in s.11. Relevantly that section provides as follows:-
“11 - Matters for consideration by the court
(1)In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court –
(a)must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to –
(i)the acquisition, conservation or improvement of property of either or both partners; or
(ii)the financial resources of either or both partners; and
(b)must consider the contributions (including homemaking or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them; and
(c)(Not applicable)
(d)may have regard to other relevant matters.”
The court is required to consider the types of contributions referred to in s.11(1)(a) and (b). S.11(1)(d) enables the court to have regard to “other relevant matters” without words of limitation. The court, having undertaken the exercise required by s.11(1), is empowered, pursuant to s.10, to make orders for the division of property “....in a way that is just and equitable”. That discretion must be exercised judicially. The legislation generally, and the words “just and equitable” in particular, were the subject of comment by Doyle CJ in Hogg v Roberts (2003) 87 SASR 248. His Honour said this (paras.10-14):-
“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.”
(As to the meaning of “just and equitable” in different legislative settings, see discussion of Barrett J in Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 (7th April, 2004).)
There is no presumption in favour of an equal division of property: Mallet v Mallet (1984) 156 CLR 605 at 610. Further, as was said in Norbis v Norbis (1986) 161 CLR 513 (at 523):-
“The assessment of the parties’ entitlements before the making of an order is another question, quite distinct from the assessment of their contributions.”
The contributions envisaged by s.11(1)(a), although financial and non-financial, are directed towards the property interests of the partners. The contributions contemplated by s.11(1)(b) have a focus, in the present case, upon what each gave to the other. Although the de facto partners had no children of their relationship, and neither had children who lived with them, contributions by way of homemaking are nonetheless relevant. As a matter of principle, and in accord with the terms of the legislation, even though no parenting is involved, the contribution of a partner contributing by means of full-time homemaking and domestic work is to be valued as equal to that of the other engaged in paid employment; that is the appropriate starting point: Arnold v Dalton (2002) 84 SASR 482 at para.58.
There are two additional matters of principle that need to be mentioned. The first is that the contributions that are to be brought to account for the purposes of the DFR Act are not limited to those contributions made during the subsistence of the relationship itself. Contributions made pursuant to s.11(a) and (b) are brought to account as at the time of the making of the order pursuant to s.10 DFR Act. The contributions are not limited to the actual period of the relationship: Arnold v Dalton (supra) at para.50.
The second point relates to the method used by the court to evaluate the matters raised in s.11 and then to consider the assessment for the purposes of s.10. This is not one of those cases that require an assessment of the contribution of each de facto partner on an “asset by asset” approach. I propose to adopt a broad approach when it comes to assessing contributions. Such an approach is sanctioned by authority: Davey v Lee (1989) 13 Fam LR 688 per McLelland J at 689; Arnold v Dalton (supra) at paras.25-26.
In Hogg v Roberts (supra), Doyle CJ had this to say on one of the approaches to this legislation (at paras.17 and 18):-
“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.”
The quotations from that decision make it plain that a consideration of the financial and non-financial contributions will not, necessarily, determine the division. In the end, the order for division must be “just and equitable”.
History of the relationship
The plaintiff (“Mr Coles”) was born on 25th December, 1934 and is presently aged 69 years. The defendant (“Ms Billing”) was born on 27th June, 1950 and is presently aged 54 years. At the time of giving evidence in October, 2003, Mr Coles described himself as a pensioner. Ms Billing has been an enrolled nurse for many years. She has involved herself for many years in small enterprises (Amway, Noni Juice) to supplement her income (TP186-187). Mr Coles was involved to a lesser extent. I return to the question of their incomes later.
Mr Coles purchased the Princes Highway property in about 1964 (TP9). As is noted above, the property so described was on two titles, one being a block of land and the other being land that included the house. Certificate of Title Volume 5160 Folio 40 comprised the land and house; Certificate of Title Volume 3315 Folio 92 was simply the block of land. When Ms Billing bought the Princes Highway property in 1997, the house block was owned by MBI Sales & Service Pty Ltd and the block alone was owned by Murray Bridge Implements Pty Ltd (see D8 and D9).
For many years, Mr Coles was operating a business in Murray Bridge involving the sales and service of farm machinery. Although it is not made clear by the evidence, the operating company for that business was probably MBI Sales & Service Pty Ltd. In any event, in the late 1990’s, the operating company of that business went into receivership. The result of the financial difficulties of the company business was that Mr Coles lost both the business and the Princes Highway property. Also, by means that were not properly explained by the evidence, the company business and the Princes Highway property came under the control of the company accountant, Mr Ross Hender. As I understand it, the ownership of the Princes Highway property remained with the companies. Mr Hender was not called as a witness. Even though Mr Coles was no longer the registered proprietor of the Princes Highway property, he remained living at that address and was paying rent.
As mentioned, Ms Billing purchased the Princes Highway property in 1997 from MBI Sales & Service Pty Ltd and Murray Bridge Implements Pty Ltd. As to the periods of cohabitation of the parties, I found Ms Billing to be more reliable and therefore rely upon her evidence in that regard, although there are some anomalies in the evidence to which I will return.
Mr Coles and Ms Billing met in September, 1985 at Ms Billing’s nephew’s 21st birthday. Later that same year Ms Billing moved to Murray Bridge from Pinnaroo. In early 1987 Ms Billing began working at the Murray Bridge Hospital as the Day Care Centre Co-ordinator. In September, 1987, Ms Billing’s former husband was killed in a car accident and $28,000 was paid to her from a life insurance policy. That pay-out enabled her, in 1989, to purchase a house in Alma Avenue, Murray Bridge for about $42,000. At this stage Mr Coles and Ms Billing were seeing each other on a regular basis. In March, 1994, Ms Billing sold that house and received net proceeds of $30,202. That money was deposited in her Everyday Account on 23rd March, 1994 (D63). On 18th April, 1994, Ms Billing purchased a car (D64). On that same date a State Bank At Call Investment Account was opened with a deposit of $10,000 (D7).
In mid-1994 Ms Billing travelled overseas for about six to seven weeks. She then returned to various jobs in Murray Bridge and Adelaide. While she was overseas, and later working in Adelaide, she kept her belongings at the Princes Highway property. In March, 1995 she worked at the Murray Bridge Hospital. It appears that at that time she was living with Mr Coles at the Princes Highway property but moved to another address by herself because of problems in their relationship. She lived by herself from August, 1995 until December, 1996. Their relationship improved and she moved back to the Princes Highway property in December, 1996 (TP83). The parties then lived together at the Princes Highway property until May, 2000 after which time they lived separately under the same roof. Ms Billing’s tax return for year ending 30th June, 2000 recites a day in May, 2000, namely the 16th, as being the date when their de facto relationship ended. That situation was maintained until April, 2001 when Mr Coles moved out into separate accommodation. The anomalies in that evidence arise from the fact that their evidence and credit card accounts show that they travelled together to the Sydney Olympics and elsewhere in September and October, 2000, and tennis trips in 2001 (see D91 and D92) (TP190). I also note that, from 4th July, 2000 to 24th April, 2001, Mr Coles paid Ms Billing $135.00 per week which Ms Billing described as “full board” (TP225).
An application for division of property pursuant to the DFR Act may only be made if the de facto relationship existed for at least three years (s.9(1)(c)). (There was no child of the de facto partners.) I find that there was a de facto relationship that existed for at least three years even though it is not entirely clear when it ended.
Extension of time within which to make the application
S.9(3) of the DFR Act provides as follows:-
“(3)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.”
I find that the de facto relationship came to an end in about July, 2000, although they appear to have had a close relationship well into 2001. After that time they did not live together (they lived separately under the same roof) and did not live together on a genuine domestic basis as husband and wife (see s.3).
Mr Coles did not file his application pursuant to the DFR Act until 28th May, 2002. On that basis the application is about ten or eleven months out of time. The application for division of property does not fall to be considered “....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”. The “....interests of both de facto partners....” must mean their financial interests at least. I also note that an extension must be necessary to avoid “serious” injustice to the applicant; what could be called a simple injustice or minor injustice would not be sufficient.
A consideration of whether to grant an extension of time must necessarily be bound up with the merits of the application for division itself. If the application lacks merit, no injustice could be done to the applicant, still less a “serious injustice”. If it has merit then it becomes a matter of judgment whether to refuse an extension would involve “serious injustice”. Obviously the sub-section gives rise to the exercise of a discretion, but it must be exercised judicially and within the statutory restrictions.
In my view, as appears below, the application has factual merit. Secondly, the applicant/plaintiff is presently aged 69 years, is a pensioner and has no assets of any significance. His claim, if successful, would meet his present needs. It is not proper to divide property “....with a view to providing, for example, for the continuing maintenance of the parties, or taking into account their future financial prospects” (see Hogg v Roberts (supra) at para.13).

Finally, it is clear from an affidavit of Mr Coles filed on 29th May, 2002 that he instructed solicitors on 1st August, 2001 to seek a settlement of the dispute concerning their de facto relationship property, particularly the Princes Highway property. That dispute was not resolved and hence Mr Coles lodged a caveat on that property. It is unnecessary to detail the history of that caveat. It is clear that Mr Coles instructed solicitors within about twelve months of the relationship ending and that he sought a division of the property. Although still outside the twelve month period, Ms Billing was on notice, no later than November, 2001, that a claim was being made by Mr Coles.
I grant an extension of time to the applicant/plaintiff. I have considered the interests of both de facto partners and consider the extension is necessary to avoid serious injustice to Mr Coles.
Purchase of Princes Highway property
As I have touched upon earlier, there is a real dispute as to whether Mr Coles made any financial contributions towards the purchase of the Princes Highway property. The case for Mr Coles is that he contributed $10,000 towards the purchase by two separate amounts each of $5,000, one amount in cash and the other contribution represented by a reduction in the purchase price of $5,000. Mr Coles said he had managed to save $5,000 in cash which was given to Ms Billing towards the purchase (TP13). Mr Coles also said that Mr Hender had $5,000 that belonged to Mr Coles and that amount was taken off the purchase price or contributed to the deposit (TP12-13). Mr Coles said the property was in her name because “I trusted her. We’d become engaged so that was the partnership arrangement” (TP14). Mr Coles put it in this way:-
“Q.Before I get to that, did you have any discussions with the defendant about contributing some moneys for the purchase of the house.
A.No, when the offer came from Hender it was discussed with Beryl and I and Beryl decided she would accept it on the basis that I put in the $5,000 cash and that Hender had the $5,000 of mine in his safe and that would go towards the purchase price.”
According to Mr Coles, the purchase price was “about $70,000 something”.
There are two contracts for the sale and purchase of the Princes Highway property, one for the house block and the other for the block alone. The documentation needs to be considered in some detail. The relevant details are as follows:-
1.By a contract dated 8th May, 1997, MBI Sales & Service Pty Ltd sold the land comprised in CT Volume 5160 Folio 40 to Ms Billing for $72,000 (D8).
The contract made provision for a deposit of $5,000. In that regard the contract recites as follows:-
“Five thousand dollars ($5,000.00) receipt of which sum is hereby acknowledged by the vendor.”
I note the contract says it was prepared by R.W. Hender and that Ross William Hender signed the contract on behalf of, and as a director of, the vendor.
I also note from the contract it was conditional upon obtaining finance from AMP/Priority One in the amount of $64,000. Ms Billing said that was the maximum she could borrow against the house on her income (TP111).
2.By a contract dated 8th May, 1997, Murray Bridge Implements Pty Ltd sold the land comprised in CT Volume 3315 Folio 92 to Ms Billing for $500 (D9).
(Pages 2 and 13 of each contract are respectively exactly the same.)
No deposit was payable on this contract.
3.Each contract provided for settlement on the 28th day of May, 1997.
4.Ms Billing obtained the $64,000 finance from AMP/Priority One.
5.As mentioned, Ms Billing had an “At Call Investment Account” with the State Bank (D7). The passbook for that account shows two substantial withdrawals, one for $4,016.34 on 4th April, 1997 and the other for $4,225.00 on 30th June, 1997.
6.The Purchaser’s Settlement Statement dated 26th June, 1997 (exhibit P4) dealt with the house and block in a combined manner, for $72,000 and $500 respectively. That statement was addressed to Ms Billing at 38 Princes Highway.
A number of other matters need to be noted about that statement. In the first place, as typed it makes no reference to the deposit of $5,000.00. Secondly, someone has written “$5,000.00 Deposit”, preceded by a question mark. Thirdly, the balance due at settlement was $10,018.00 to be paid by bank cheques, one for $9,220.00 payable to the National Australia Bank, and the other for $798.00 payable to Mason, Westover, Rowe & Homburg (Murray Bridge solicitors and conveyancers). Fourthly, exhibit P4 shows this handwritten notation “Bank SA Bank cheque payable to National Australia Bank $4,220.00 received 30/6/97” followed by a signature apparently acknowledging physical receipt of the cheque.
7.Priority One provided a statement to Ms Billing showing her the manner in which monies were disbursed, including a payment to R.W. & C.M. Hender of $5,908.39. Priority One in fact paid out $64,897.00, the extra $897.00 being made up of lenders mortgage insurance, registration of mortgage and stamp duty. All disbursements were paid on 3rd July, 1997, which I infer to have been the actual date of settlement (confirmed by D117).
8.There is also a Mason, Westover Trust Account receipt dated 30th June, 1997 recording the receipt from Bank of South Australia of the amount of $798.00 by way of a bank cheque on account of settlement. That amount came from one of Ms Billing’s accounts (D78) (TP177).
9.Ms Billing also tendered the conveyancing file of Mason Westover (D117). That file shows an amended Purchaser’s Settlement Statement dated 9th July. This was not mentioned at all during the trial. Some of the figures are different. A disbursement to the Lands Titles Office was reduced from $298.00 to $265.00. Rent was to 3rd July, 1997, being an amount of $822.86 (whereas previously rent to 27th June, 1997 was $720.00). Importantly, the balance due to settle of $10,018.00, as noted on the original statement, was divided into two amounts, a “Deposit Paid $5,000” and “Paid by you $5,018.00”. There was also an additional amount (new) of $69.86 payable. This last amount was paid by Ms Billing on 25th July, 1997 (see D12 and D52).
10.Allied to paragraph 9, the conveyancing file of Mason, Westover revealed another document not mentioned or alluded to during the course of the trial. It relates to a telephone attendance by a member of the staff of Mason, Westover (probably Mr Jim Mason) upon Ms Billing at 3.45 p.m. on 30th June, 1997. The text of the attendance note is as follows:-
“The settlement statement will need to be amended. Ms Billing paid a $5,000 deposit which wasn’t included in the statement. Please send her an amended statement.
2 cheques received
(1)NAB $4220-00
(2)MWRH
Trust A/c$798-00”
The file went in by consent (TP205) but would have been admissible pursuant to s.45A Evidence Act 1929. I considered calling the matter back on for further submissions and possibly further evidence, but in the end decided against that course because the note reflected no more than I would have inferred anyway. After all, there needed to be a catalyst for the amended Purchaser’s Settlement Statement and I would have inferred Ms Billing contacted Mason, Westover to remind them that a $5,000 deposit had been paid, as the contract recorded.
Discussion and further reference to the evidence
It seems clear that Ms Billing withdrew $4,225.00 from the State Bank passbook and obtained a bank cheque payable to the National Australia Bank for $4,220.00 (the additional $5.00 being for the issue of the bank cheque). That cheque was then given to Mason, Westover on 30th June, 1997.
Notwithstanding that the contract D8 refers to a deposit of $5,000.00 (that, according to its terms, had been paid at some time before 8th May, 1997), Ms Billing said that the deposit was $10,000.00 (TP90). She said that the withdrawal of $4,016.34 in April was in the form of a cheque given to Mason, Westover and that the balance of the deposit came from a Westpac account (TP92). The documentation does not support those assertions. Importantly, Ms Billing says that she paid all of the deposit and that Mr Coles did not give her any amount towards the house. However, she also said that she was unaware of whether Mr Hender had adjusted the purchase price because he owed $5,000 to Mr Coles (TP93). Ms Billing said she did not know when the $5,000 deposit referred to in the contract was paid, but she paid it (TP95-6).
Resolution of the dispute as to who paid the deposit is important. A number of matters emerge from the original Purchaser’s Settlement Statement (P4). That statement failed to make any reference to a $5,000 deposit that had, according to the contract D8, already been paid as at 8th May, 1997. Hence, $10,018 was the balance to enable settlement to take place. Mason Westover wanted two bank cheques totalling that amount.
The question mark “?” in front of the figures and word “$5,000.00 Deposit” are in Mr Coles’ handwriting. Ms Billing acknowledged as much and agreed that was written “at the time”, which I infer to be upon receipt of the document and prior to settlement (TP244, 250). The Amended Settlement Statement (D117) recognised that the deposit of $5,000 had been paid. She must have rung Mason, Westover and the telephone attendance note reflects that. There was never a deposit of $10,000 as Ms Billing seems to have believed. Ms Billing said that the balance of the deposit was borrowed and paid at settlement (TP245). That is not correct.
I find that Mr Coles provided the $5,000 deposit, referred to in the contract, for the purchase of the Princes Highway property. I make that finding on a number of bases. I found him to be an honest, reliable and trustworthy witness. Secondly, his assertion that a deposit of $5,000 had, in effect, been paid by him was something that he raised and maintained at about the time of the handwritten notation on the original settlement statement. Ms Billing gave evidence to that effect (TP245) but also said, somewhat inconsistently, that she did not take much notice of the dealings between Mr Coles and Mr Hender, but then said Mr Coles had no proof to show he had put in $5,000 (TP242-250). I found some of Ms Billing’s answers in those pages to be quite disingenuous.
As to the withdrawal of $4,016.34 by Ms Billing on 4th April, 1997 (see D7), I find that that was not related to the payment of the deposit. Not only is it well before the signing of the contract, it is for an uneven amount such as to suggest it was for a discrete payment unconnected with the deposit.
As mentioned, Mr Coles says that he, in effect, put in $10,000 towards the purchase of the Princes Highway property, the $5,000 deposit already discussed together with a reduction in the purchase price. Consistently with my findings on credit and reliability concerning the deposit, I find that Mr Coles, in his negotiations with Mr Hender, obtained a reduction of $5,000 in the purchase price otherwise being sought by Mr Hender. Ms Billing was not privy to those negotiations. Overall I conclude that Mr Coles contributed $10,000 towards the purchase of the property. Effectively the purchase price was $77,500.
As mentioned earlier, for practical purposes the Princes Highway property is the only asset of the relationship requiring an order. By different means, Mr Coles put $10,000 towards the property. Ms Billing borrowed a total of $64,897.00. In addition, Ms Billing contributed $4,220.00 plus $798.00 and some smaller amounts for various fees.
Other financial contributions
I now turn to the topic of other financial contributions, particularly repayments of the mortgage. The ability of each party to make other financial contributions is bound-up with their respective incomes and other assets that were available for that purpose.
Before proceeding further, I make these general observations about the evidence. I have found it difficult to discern from the evidence who actually made contributions of a particular type or on a particular occasion or occasions. In some instances, there was an acceptance by one party or the other about particular payments and they, therefore, presented no difficulty. However, in other instances, the party paying the account may have been using that party’s money solely, or money of the other party, or a mixture of moneys.
Similarly, the fact that a cheque from one party was used to pay an account may not be decisive because the other party may have made a cash contribution to the party writing the cheque. In much the same vein, Ms Billing said that Mr Coles had use of her credit card and also knew her PIN so that he could withdraw cash or make an EFTPOS payment (TP132). None of this is to suggest anything improper or unusual. On the contrary, these difficulties are commonplace when both parties are making financial contributions.
In December, 1996, Ms Billing moved back to the Princes Highway property (TP83). Ms Billing had been living previously in a house at Phillip Street, Murray Bridge. Mr Coles had been renting the Princes Highway property for some years. At about the time of the purchase of that property, Mr Coles did not have employment. After he had become unemployed in the late 90’s, he said, “....I was lost for a fair while, wasn’t I” (TP83). After a little while he gained employment bus driving and was also involved with the Day Care Centre at the Murray Bridge Hospital, although that appears to have been voluntary (TP16, 18). The only wages slips tendered that related to Mr Coles were for the weeks ending 16th March and 23rd March, 2001 when he was paid $272.25 per week (D83). That relates to the period after they were living in a de facto relationship.
At one stage in his evidence he said he obtained a bus licence and gained employment as a bus driver earning $200-$300 per week. In addition to that, he had a part-pension. In the 1998/99 year, he could not remember how he was paying for things (TP49-50). At some stage he had a garage sale and obtained $1,800-$2,200 (TP51). Mr Coles also said that, at the time he lost his business, he sold a few shares to finance his personal expenses (TP25). However, no date or amount was given.
The evidence does not disclose any periods of employment or income. The evidence does disclose he had some money available to him on an ongoing basis but the amount is not known. Once Mr Coles commenced to pay board or rent of $135.00 per week in early July, 2000, clearly he then had that amount available on a weekly basis. However, my overall impression from the evidence is that Mr Coles’ income was not great, certainly nothing like that of Ms Billing. On the other hand, Ms Billing worked throughout the relationship. That was her evidence and was accepted by Mr Coles (TP21). During the period of their relationship as de facto partners, her income tax returns (D80) show a taxable income of between about $22,500 and $26,000. After the relationship ended, her taxable income was between about $23,252 up to $27,800. There were no tax returns put in for Mr Coles.
As to the mortgage payments to Priority One, I find that Ms Billing paid them from her accounts, with very little by way of contribution from Mr Coles (TP62-3, 109). That remains the position to this day although, because the property has been rented to third parties for some years, that rent must be brought to account against the expenses associated with the rental of the property. Strangely, Ms Billing seemed reticent to accept that obvious position (TP228, 231-2, 262). I note that the current rent is $160.00 per week and the mortgage repayment is $147.09 per week (TP264 and D120).
I also note and take into account that the cost of re-roofing in January, 2000 was achieved by a re-drawing of the mortgage whereby it went up to $67,750 outstanding (TP157). Ms Billing has been maintaining the property since the cessation of the de facto relationship. Mr Coles acknowledges he did not contribute to the new windows, vertical drapes, new roof, the new septic system and removing the underground fuel tank (TP27, 60-61).
More generally on the question of the expenses of the household, I find that Ms Billing paid and financed most of those expenses and that Mr Coles contributed money to enable expenses to be paid when he was not unemployed (TP224-226, 257). I find that they did not share expenses after Mr Coles lived elsewhere (TP134).
By way of summary on the aspect of financial contributions, I find that Ms Billing paid the mortgage from her moneys with very little contribution from Mr Coles. Apart from that, the parties certainly shared expenses but the dollar value of those contributions greatly favoured Ms Billing. Ms Billing is well‑organised, hardworking, resourceful and determined. It was her income that provided by far the major contribution of a financial nature to this de facto relationship.
Non-financial contributions
I have included under this heading some items that may be considered more appropriate as financial contributions. I have in mind activities associated with the general upkeep and maintenance of the Princes Highway property, such as lawn mowing, garden maintenance, tree pruning and removal, and painting. Those matters have financial consequences but I have considered them under this heading.
Mr Coles gave evidence that he was able to undertake a number of tasks around the house because he had a reasonable amount of free time because he no longer had a business or a job (TP18). Mr Coles said that he did the general gardening in the form of lawn mowing, weeding, pruning, spraying of fruit trees and removal of a tree. He also did the painting (inside and outside) and general repairs that needed to be undertaken. Ms Billing acknowledged that Mr Coles did the outside chores (TP255). I find that Mr Coles did the majority of the activities associated with the general upkeep of the property.
Mr Coles said that they shared the cooking (TP20). Ms Billing seemed to agree, but said that she did most of the cleaning (TP254-5). I find that the cooking was shared but that Ms Billing did most of the cleaning.
Conclusion
I had undertaken a consideration of the matters referred to s.11(1) of the DFR Act. I have concluded that Mr Coles, in effect, contributed $10,000 towards the purchase of the Princes Highway property but, apart from that, brought little by way of financial resources to the relationship. He was unemployed for some of their relationship. He obtained employment, on a casual basis, as a bus driver but I am unable to say when that was or how much he earned. However, it does appear to be common ground that at some stages he had some money available to him. They shared some expenses while they were living together.
Ms Billing worked throughout the relationship earning a modest but consistent income. She met the mortgage payments and associated outgoings (insurance, rates and taxes etc.) with only a little assistance from Mr Coles. Since she has rented the property, she has had the benefit of the income to be offset against the outgoings. As against that she has had to rent accommodation for herself. The re-drawing of the mortgage was mainly to effect improvements to the property, although I do take into account that about $7,000 represented Ms Billing’s debts (TP259). The non-financial contributions are fairly evenly split.
Quite apart from those matters, I have given consideration to a division that is just and equitable. Ms Billing was the mainstay of this relationship in a financial sense. She has undertaken the maintenance and upkeep of the property since the relationship ended, although with the benefit of rent for some of the time.
In my view, the property should be sold and the net proceeds be divided one‑third to Mr Coles and two-thirds to Ms Billing.

I will hear the parties as to the form of the orders as to costs.