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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coles v Billing

Details

AGLC: Coles v Billing [2004] SADC 142
Case: [2004] SADC 142
Decision Date: 15 October 2004

CaseChat Overview and Summary

The District Court of South Australia was called upon to determine a property division dispute between de facto partners, Mr. Coles and Ms. Billing, pursuant to the De Facto Relationships Act 1996. Mr. Coles claimed a $10,000 contribution to the purchase of a property at 38 Princes Highway, Murray Bridge, while Ms. Billing denied any such contribution. Additionally, Mr. Coles sought an extension of time to file his claim, as he had filed it approximately ten months after the statutory deadline. The court had to decide whether Mr. Coles's application was within the statutory time limit and, if not, whether an extension was warranted to prevent serious injustice. The court also needed to assess the financial and non-financial contributions made by each party during the relationship to determine a just and equitable division of the property.

The court granted the extension of time, finding that Mr. Coles's application, if meritorious, would meet his present needs and that denying the extension would cause serious injustice. The court found that Mr. Coles had indeed contributed $10,000 towards the purchase of the property, primarily through a deposit and a negotiated reduction in the purchase price. While the court acknowledged that Mr. Coles had limited financial contributions during the relationship, it found that Ms. Billing was the financial mainstay, having met most of the mortgage payments and other expenses. Non-financial contributions were considered fairly even, with Mr. Coles undertaking most of the property maintenance tasks. Based on these findings, the court ordered the property to be sold and the net proceeds divided one-third to Mr. Coles and two-thirds to Ms. Billing.

Orders