Klinovski v Jovanovic - [2012] SADC 4

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
KLINOVSKI v JOVANOVIC
[2012] SADC 4
Judgment of His Honour Judge Clayton
24 January 2012
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS
Division of property pursuant to Domestic Partners Property Act 1996.
Domestic Partners Property Act 1996 s 10, s 11; Lunn Civil Procedure 6R 26485, referred to.
F, BA v D, BJ [2010] SADC 92; Hogg v Roberts (2003) 87 SASR 248; Black v Black (1991) 15 Fam LR 109; Evans v Marmont (1997) 42 NSWLR 70; Dwyer v Kaljo (1992) 27 NSWLR 728; Love v Chidley [2001] SADC 36; Condoluci v Condoluci [2002] SADC 159; Davey v Lee (1989) 13 Fam LR 688; Germinario v Pinkerton [2000] SADC 89; Simmons v Williams [2002] SADC 168; Wren v Chandler [2004] SADC 128, considered.

KLINOVSKI v JOVANOVIC
[2012] SADC 4

The plaintiff seeks orders pursuant to the Domestic Partners Property Act 1996.
I am satisfied that the pre-requisites for the intervention of the court have been satisfied. The parties were in a domestic relationship for at least three years from approximately September or October 2004 until the middle of 2008. He and the defendant were residents in South Australia for the whole of the period of the relationship and the plaintiff was a resident of South Australia when he commenced the proceedings on 4 September 2008. The proceedings were commenced within one year after the end of the domestic relationship.
The assets which are the subject of the application are two allotments on which houses have been erected at Andamooka. The land in Certificate of Title Register Book Volume 5883 Folio 570 is known as Lot 688 and the land in Certificate of Title Register Book Volume 5427 Folio 38 is known as Lot 622. At the present time the defendant is the registered proprietor of both properties.
The plaintiff seeks an order that Lot 688 be transferred from the defendant to him and an order that Lot 622 be sold and that the proceeds be divided and distributed to the parties.
The defendant did not appear at the trial and the hearing proceeded in her absence. Initially she was represented by solicitors but on 24 March 2011 counsel appeared before Master Blumberg to advise that her solicitors were no longer acting. The master ordered that a copy of the orders which he made on that day be sent to the defendant care of Ms Gina Traljic, a person who had acted as an interpreter. The court had no other address for the defendant.
When the matter was next before the master on 14 June 2011 there was no appearance for the defendant. The solicitor for the plaintiff applied for default judgment. The master’s fiat reads:
3. The court is not prepared to enter a default judgment on the basis that the plaintiff needs to satisfy the court by evidence that this is a matter to which the Act applies and specific reference is made to the approach in F, BA v D, BJ [2010] SADC 92.
The authority which the master referred to is a decision of His Honour Judge Beazley. Mr ST Lane who appeared for the plaintiff referred me to that decision and suggested that I should proceed in the same way.
On 20 September 2011 the master referred the action to a listing conference. He directed that the plaintiff's solicitors issue an SMS text message to the defendant’s mobile telephone number in the following terms:
The case against you by Ivan John Klinovski has been ordered to proceed to a full trial and will be listed in the court at 10:15 am (SA time) on 13.10.2011 and you should attend that hearing by lawyer or in person.
The master also directed that the plaintiff make contact with Ms Traljic to seek the defendant’s current address.
In addition the master directed, pursuant to r 10, that the plaintiff's solicitors make contact with the defendant on her mobile telephone number and inform her of the listing appointment date on 13 October 2011 at 10:15 am and invite her attendance at that appointment. He also directed that the plaintiff’s solicitors file affidavits deposing to their compliance with the orders.
The required affidavit was filed on 10 October 2011. In the affidavit the solicitor states:
·    On 26 September 2011 he attempted to contact Ms Traljic by telephone. The call was answered by an answering machine and the solicitor left a message stating that he was the plaintiff's solicitor and was calling to obtain a current address for the defendant. He requested that Ms Traljic contact him.
·    On 26 September the solicitor wrote to Ms Traljic advising that his firm was seeking the current address of the defendant so that they could inform her that the matter been referred to a listing conference.
·    On 26 September 2011 the solicitor attempted to contact the defendant on her mobile telephone. The calls were unanswered and he left a voice message stating that he was the plaintiff's solicitor and was calling to advise that the matter been referred for a listing conference and requesting that the defendant contact him.
·    On 27 September the solicitor received a call from Ms Traljic who advised that she had been contacted by the defendant in relation to the voice message which the solicitor had left on her phone. Ms Traljic advised that the defendant could not understand the message and the solicitor advised Ms Traljic that he had attempted to contact the defendant to inform her that the proceedings had been referred to a listing conference. He requested Ms Traljic to pass that information on to the defendant.
·    On 27 September 2011 he caused an SMS message to be sent to the defendant’s mobile telephone number advising that the case had been ordered to proceed to a full trial and advising of the listing conference.
·    On 27 September 2011 the solicitor caused the same message to be translated into the Serbian language and sent via SMS text message in Cyrillic script to the defendant’s mobile telephone number.
·    On 28 September 2011 the solicitor received a call from Ms Traljic who advised that she had spoken with the defendant and that the defendant had refused to provide her with her current address. She claimed that she did not have a stable place to stay and would not be able to read the papers if they were sent to her.
·    Ms Traljic also advised that the defendant was aware of the listing conference on 13 October 2011 but said that she did not want to participate in a conference but would attend the trial.
·    She also advised that the defendant did not want the solicitor to attempt any further contact with her.
On 19 October 2011 the plaintiff’s solicitors sent an SMS text message to the defendant’s mobile telephone in the following terms:
The case against you by Ivan John Klinovski is now listed for a 2-day trial commencing on 12.01.12 at 10 am (SA time). We seek to rely on a series of affidavits at trial. If you want copies of these beforehand, you will need to provide us with an address where they can be sent by 16.12.11.[1]
[1] Exhibit P6.
The evidence establishes that the defendant did receive messages sent to her mobile telephone. It can therefore be assumed that she received notice of the trial date. There was no reply to the message.
On the day of trial the name of the defendant was called in the customary way in the precincts of the court but there was no appearance by the defendant. The case proceeded in her absence. The evidence suggests that the defendant had deliberately elected not to participate in the proceedings.
I made an order pursuant to r 168 that the hearing proceed on affidavit evidence, a number of affidavits were received into evidence and Mr Lane made submissions.
The plaintiff must establish on the balance of probabilities that he is entitled to relief under the Act.
Section 10 of the Act provides that on an application for the division of property after the end of a domestic partnership the court may make such orders as it considers necessary to divide between the domestic partners the property of either or both partners in a way that is just and equitable. Subsection (2) refers by way of example to (a) The transfer of property from one domestic partner to the other, or (b) The sale of property and the division of the net proceeds between the domestic partners in proportions decided by the court or (c) The payment by one domestic partner of a lump sum to the other.
Section 11 provides:
(1) In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court-
(a)must consider the financial and non financial contributions made directly or indirectly by or on behalf of the domestic partners to-
(i) the acquisition, conservation or improvement of property of either or both partners; or
(ii) the financial resources of either or both partners; and
(b)must consider the contributions (including homemaking or parenting contributions) made by either of the domestic partners to the other partner or to children of the partners or either of them; and
(c)must have regard to the terms of any relevant domestic partnership agreement; and
(d)may have regard to other relevant matters.
There was no relevant domestic partnership agreement.
As a consequence of s 11 I must consider the matters referred to in paras (a) and (b). I may also have regard to "other relevant matters".
In Hogg v Roberts (2003) 87 SASR 248 Doyle CJ (with whom Perry and Gray JJ agreed) observed with respect to a predecessor of s 11:
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 matters 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.
In this case there are no children to consider. My primary focus must be on the property in question and the contributions of the parties which are identified in subs 11(1). The overriding requirement is that the division of property decided upon by the court must be just and equitable.
Background
Both the plaintiff and the defendant had been in previous relationships and had children from those relationships. They can be ignored for present purposes.
The plaintiff had been a resident of Andamooka since the 1990s and had resided at Lot 688. Initially there was a tram carriage on that land which the plaintiff used as a residence but over the years from about 1996 he made major renovations and extensions. The extent of the renovations is shown in Exhibit IJK2 to the affidavit of the plaintiff.
In October 2000 the plaintiff sustained serious burns and spent approximately 16 months in hospital. He commenced receiving Centrelink payments. He remained in hospital until about February 2002. In about August 2002 he returned to Andamooka and lived alone in the house on Lot 688.
When he returned to Andamooka the plaintiff entered into a partnership to mine for opal with Mr Willis, an old friend. He also borrowed $25,000 from Mr Willis. In connection with the loan of the money the plaintiff transferred the ownership of Lot 688 to Mr Willis, but he continued to live there rent-free. The arrangement was that the plaintiff would pay the outgoings on the property and after approximately 2 years Mr Willis would transfer the house back to the plaintiff for $35,000 in full settlement of the loan of $25,000.[2] It was an unusual arrangement but there is no reason for me to go behind the evidence of the plaintiff.
[2] Plaintiff's Affidavit sworn 24 August 2011 para 22.
The parties were introduced to each other in about November 2003. During that year they travelled to Melbourne together and in early 2004 they discussed the possibility of living together at Andamooka. From the commencement of 2004 the defendant declared that she would like to live with the plaintiff in Andamooka but she was initially unable to do that because she needed to continue living with her husband in order to qualify for a permanent visa. The possibility of living together was discussed by the parties on many occasions during telephone conversations during 2004. The defendant visited the plaintiff in Andamooka in about March or April and again in August 2004. On those occasions the parties slept together in the double bed in the main bedroom.
On her second visit the defendant told the plaintiff that she had been locked out of her home by her husband and had to move to a women's shelter. A short time later she telephoned the plaintiff and said that she wanted to live with him in Andamooka. In late September or early October 2004 the defendant moved to Andamooka and commenced living with the plaintiff at Lot 688. At that time the defendant knew no one else in Andamooka.
I find that a close personal relationship between the plaintiff and the defendant within the meaning of the Domestic Partners Property Act commenced no later than October 2004.
The evidence establishes that the parties lived as man and wife and, although it is not essential for the purpose of these proceedings, there was a sexual relationship. They socialised and lived together in Andamooka. Friends visited them for the purpose of playing cards and barbecues. They attended at the homes of friends together and attended at a restaurant with friends.[3] They were treated by others as man and wife. For example they received joint Christmas cards.[4] The plaintiff was shown as the "preferred beneficiary" in the defendant’s superannuation documentation.
[3] Plaintiff's Affidavit para 66.
[4] Plaintiff's Affidavit para 67.
In an affidavit Mr Willis stated that he originally thought that Lot 688 was going to be transferred back into the plaintiff's name, but subsequently he was told that the parties had decided to transfer it into the defendant's name so that she could get the first homeowners grant. Mr Willis tried to talk the plaintiff out of doing that but was unsuccessful. Lot 688 transferred from Mr Willis to the defendant in September 2004 for the agreed amount of $35,000.
On occasions Mr Willis stayed at the house. On those occasions the defendant cooked meals for the plaintiff, himself and herself. He saw the defendant cleaning the house and saw the parties going off to bed together in the same bedroom.
Mr Blackmore, who was in partnership with the plaintiff as a hobby Opal Miner, visited Lot 688 regularly for about three to four years after the defendant moved to Andamooka. He regularly had meals and coffee in the house and always saw the parties doing things around the house together. There was a double bed in the main bedroom. He saw the parties playing cards and having meals with other friends. From time to time he saw the plaintiff and the defendant together at the other person’s homes in Andamooka.
The plaintiff assisted the defendant to obtain employment with Compass Group.
When the defendant first moved to Lot 688 she did the cooking, shopping, cleaning and washing and ironing for about a year. The plaintiff and defendant did the shopping. Much of the cleaning was done by the plaintiff.[5]
[5] Plaintiff's Affidavit paras 60 to 62.
The evidence establishes that the parties continued to live together until they had had an argument in the middle of 2008 following which the plaintiff moved out. The defendant moved out of Lot 688 in approximately August 2008. His evidence is that he was "kicked out".
A close personal relationship had therefore continued from at least October 2004 until June 2008, that is more than 3½ years.
At the commencement of the relationship the defendant had no assets of consequence apart from an entitlement to a property settlement.[6] She received that settlement during the course of the relationship.
[6] Plaintiff's Affidavit para 38.
At the commencement of the relationship the plaintiff owned Lot 688 and another property at Lot 599 together with some motor vehicles, furniture and household effects.
During the relationship the defendant had an income from her employment at Compass. From time to time she forwarded significant sums of money overseas to her daughter.[7]
[7] Plaintiff's Affidavit paras 68, 69, 70.
In June 2006 the defendant settled on the purchase of Lot 622 for $45,000. The contract had been signed on 30 March 2006. The purchase price was raised by a loan from National Australia Bank. The defendant paid interest on that loan at the rate of $185 per fortnight. She made 36 payments in the period from 29 June 2006 until 4 January 2008 when the plaintiff paid $25,830.16 to satisfy the amount owing to the bank.[8]
[8] Plaintiff's Affidavit para 79.
The plaintiff's evidence is that when the defendant acquired Lot 622 there was a house "but it was a total mess and a wreck". The condition of the house is shown in photographs.[9] The plaintiff's evidence is that he virtually rebuilt the house at Lot 622 over a period of about nine months.[10] He said that the defendant spent about $15,000 on materials and household items used in renovating the house.[11] The plaintiff did provide some materials but believes that the items purchased by the defendant exceeded the cost of the materials that he supplied by "several thousand dollars". The plaintiff did all the physical work and the defendant did virtually nothing.[12]
[9] Plaintiff's Affidavit Exhibit IJK22.
[10] Plaintiff's Affidavit para 83.
[11] Plaintiff's Affidavit para 84.
[12] Plaintiff's Affidavit para 85.
The work which the plaintiff carried out is described in para 86 of his affidavit. It was quite extensive. The plaintiff's evidence is that he spent 255 days working between eight and 12 hours a day on the house. The completed house is shown in photographs which corroborate the plaintiff's evidence.[13] There is evidence that the cost of labour was $40 per hour. The work which the plaintiff carried out is a contribution which must be taken into account.
[13] Plaintiff's Affidavit paras 87 and 88 and Exhibit IJK 22.
When the work on Lot 622 was completed in about May 2007 the house was rented at $200 per week. The rent was paid to the defendant.[14] The defendant received rent of $400 per fortnight from 9 May 2007 to 24 October 2007 and then from the 11 November 2007 to 16 July 2008.
[14] Plaintiff's Affidavit paras 89 to 91.
During 2007 the parties discussed the possibility of buying an additional house away from Andamooka, perhaps in the Riverland, to provide a refuge from the heat in the summer. Those discussions provided the incentive for the plaintiff to sell Lot 599.
On 27 November 2007 the plaintiff entered a contract to sell Lot 599. He received the settlement proceeds of $129,386.20 on 17 December 2007. He used some of those moneys to pay out the defendant's liability to the National Bank.[15]
[15] Plaintiff's Affidavit para 96.
On 4 January 2008 the plaintiff paid to the National Bank a total of $44,048.90 being $18,218.74 in respect of Lot 688 and $25,830.16 in respect of Lot 622. In his affidavit the plaintiff states that the defendant requested "an extra $5,000 because she had been paying interest on the loan. Because I wanted to preserve our relationship and we were talking of buying another house together in the Riverland, I stupidly agreed to do so". He paid a further $5,000 into the defendant's account on 10 January 2008.[16] The plaintiff had therefore paid a total of $49,048.90 either to the defendant directly or to the bank to satisfy her indebtedness in respect of the loans which enabled the purchase of Lots 688 and 622.
[16] Plaintiff's Affidavit para 99.

The plaintiff's evidence is that the parties continued to talk about transferring Lot 688 and Lot 622 into their joint names. He said that eventually the defendant agreed if his name appeared first on the title for Lot 688 and hers first on the title for Lot 622. Her reason for that requirement is not known. In January 2008 draft transfers were prepared by a solicitor.[17] However when the documents were presented to the defendant she refused to sign them.[18]
[17] Plaintiff's Affidavit para 97 and Exhibit IJK27.
[18] Plaintiff's Affidavit para 100.
The plaintiff said that when the defendant would not sign the transfers and when she told him that she wanted the proposed house in the Riverland to be in her name only he became suspicious of her and gave instructions to his solicitor for caveats to be lodged over Lots 688 and 622.[19] The caveats remain on those titles.
[19] Plaintiff's Affidavit para 101.
The plaintiff’s affidavit states that in about mid 2008 the parties had "a major argument" and the defendant "kicked" the plaintiff out of the house. He then lived with a friend for six or seven months during which a criminal charge was brought against him as a result of a complaint made by the defendant, but on 23 January 2009 the police informed him that he could go back and live at Lot 688 because they had dropped the criminal charge".[20]
[20] Plaintiff's Affidavit para 102.
The defendant stayed in the house at Lot 688 for about one month after she "kicked" the plaintiff out and she then moved to Western Australia with a new job. The house was vacant between when she moved out until when the plaintiff was permitted to return on 23 January 2009. He has continued to live there since and has paid all expenses associated living in the house.[21]
[21] Plaintiff's Affidavit para 103.
The house at Lot 622 has been vacant since the defendant left Andamooka.[22]
[22] Plaintiff's Affidavit para 105.
In 2005 the defendant received a property settlement of approximately $23,000. Five thousand was paid to a lawyer and the balance was paid into her bank account on 7 October 2005.[23]
[23] Plaintiff's Affidavit para 106.
Exhibit IJK29 is a document disclosed by the defendant which indicates that between 19 June 2006 and 19 May 2008 the defendant had transferred an amount of $39,990 to her daughter. Exhibit IJK30 is another document disclosed by the defendant evidencing a further payment of $7, 000 (Euros 4136.11).
In his affidavit the plaintiff states that from what the defendant told him he believes that the defendant transferred more than the amounts of $39,990 and $7,000 shown in Exhibits IJK29 and IJK30 and that the correct amount that was transferred to the defendant’s daughter might have been closer to $83,000.[24]
[24] Plaintiff's Affidavit para 108.
In December 2004 a friend to whom the plaintiff had lent $34,000 repaid about $17,000 of the debt.[25] The remaining $17,000 was repaid to the plaintiff in about October 2005. From that money the plaintiff lent the defendant $3,000 which she said she wanted to send overseas to her daughter. The defendant repaid $1,200 of that amount.[26] Some of the balance of the $17,000 was used by the plaintiff to carry out the work on Lot 622.[27]
[25] Plaintiff's Affidavit para 47.
[26] Plaintiff's Affidavit para 80.
[27] Plaintiff's Affidavit paras 81 to 86.
As at the date of separation the plaintiff no longer owned Lot 599 or a four‑wheel-drive Nissan patrol, but he still owned another Nissan Patrol utility and the other assets which he had at the time the relationship commenced. In addition he had a Hilux Toyota utility and a Nissan Pathfinder. He did not have further liabilities.
As at the date of separation the defendant was the registered proprietor of Lots 688 and 622 and she owned a Daewoo car, clothing, furniture, superannuation entitlements and an unknown amount of cash.
I have referred to the evidence as to the financial resources of both partners.
I have referred to the financial and non-financial contributions made directly or indirectly by or on behalf of each of the domestic partners to the acquisition, conservation or improvement of the property.
As I have mentioned there is no relevant domestic partnership agreement.
Lot 688
Lot 688 was purchased by the plaintiff long before he met the defendant. It was his home and he had carried out improvements on the property.
As I have mentioned at the time that the plaintiff borrowed the sum of $25,000 from Mr Willis he arranged to purchase Lot 688 back from Mr Willis for the sum of $35,000. There is no evidence as to the value of Lot 688 at that time but it is reasonable to assume that it was more than $35,000.
The plaintiff continued to reside at Lot 688 after the property was transferred to Mr Willis.
The plaintiff and the defendant originally discussed purchasing Lot 688 in joint names. The defendant suggested that the house be registered in her name only so that she could obtain the $7,000 first home owners grant from the government. The plaintiff agreed and on 23 September 2004 a contract was signed by the defendant and Mr Willis for the purchase of Lot 688 by the defendant from Mr Willis for $35,000.
It is reasonable to assume that the purchase price of $35,000 did not represent the market value of Lot 688 but was in reality an amount which was in effect a charge on the property in respect of the loan of $25,000 which Mr Willis had made to the plaintiff together with interest of $10,000. To the extent that the market value of Lot 688 may have been in excess of $35,000 any excess represented the equity that the plaintiff had built up in the property over the years since he first resided there in the 1990s. When the property was transferred to the defendant she became the legal owner of that beneficial interest.
The transaction required a deposit of $3,000 and settlement was fixed for 29 October 2004.[28] The plaintiff gave Mr Maurice Martin, a conveyancer, a cheque for $3,000 dated 23 September 2004 which had been drawn by Mr Willis in respect of moneys due to the plaintiff under their opal mining partnership agreement.
[28] Plaintiff's Affidavit paras 42 to 45.
Settlement on the transfer of Lot 688 took place on 10 December 2004 and a bank cheque for $32,495 was given to Mr Martin. The funds for that bank cheque came from a drawdown of $27,486.90 on a home loan to the defendant from the National Bank in Roxby Downs and a sum of $7,000 which the plaintiff borrowed from Mr Sideris, a friend. [29] That $7,000 was later repaid by the plaintiff to Mr Sideris on 14 December 2004. As I have mentioned the plaintiff had already paid the deposit of $3,000.
[29] Plaintiff's Affidavit para 49 and Exhibits IJK11 and IJK12.
Accordingly, in addition to the plaintiff’s beneficial interest in Lot 688 which I have mentioned, the plaintiff contributed the amounts of $3,000 and $7,000 to the purchase of the property.
The first homeowner grant of $7,000 was paid into the defendant’s account at the National Bank on 10 December 2004.[30] Another cash deposit of $7,000 had been made on 15 October 2004.[31] What ultimately happened to the $7,000 homeowner grant received by the defendant is not clear.
[30] Exhibit IJK4 p2.
[31] Exhibit IJK4 p1.
The defendant's actual contribution to the purchase of Lot 688 consisted of fortnightly instalments of $100 which were made on the home loan of $27,486.90 from the National Bank. The defendant made 80 payments of $100 during the period from 10 December 2004 until 4 January 2008.[32]
[32] Plaintiff's Affidavit para 57.
The actual cash contribution of the defendant to the acquisition of Lot 688 was therefore $8,000.
Although the legal interest in Lot 688 was registered in the name of the defendant the intention of the parties appears to have been that they should have had an equal interest. I find that the property was only registered in the name of the defendant to facilitate the payment of a first home buyers grant.
The plaintiff claims that at the time the defendant acquired the house the parties agreed that the house would be transferred into both names in two years time. The wait of two years was related to the first time home owner’s grant. The plaintiff's evidence is that after two years he often talked to the defendant about transferring the house into their two names and she kept saying "We will do it one day, we will do it one day".[33] Transfer documents which were prepared by a solicitor in January 2008 corroborate the plaintiff's evidence.[34]
[33] Plaintiff's Affidavit paras 54 to 56.
[34] Exhibit IJK27.
On 4 January 2008 the balance owing on the mortgage over Lot 688 was $18,218.74. The plaintiff paid that amount from his bank account into the defendant's bank account.[35] That payment represented a further contribution by the plaintiff to the acquisition of Lot 688.
[35] Plaintiff's Affidavit para 58.
With the exception of the period between 5 October 2008 and 23 January 2009, during which the plaintiff was excluded from Lot 688, the plaintiff since 1996 has always paid for the electricity supplied to the house.[36] In addition he always paid for water at the rate of $100 for 2000 gallons whenever it was required and he paid the telephone account.[37]
[36] Plaintiff's Affidavit para 63.
[37] Plaintiff's Affidavit paras 64 and 65.
After the defendant had acquired Lot 688 the plaintiff continued to carry out work on the house on Lot 688. He lined the bedroom at the northern end of the home, painted it and installed new carpet.[38]
[38] Plaintiff's Affidavit para 53.
The only financial contribution which the defendant made to Lot 688 was the sum of $8,000 by way of the fortnightly payments which I have already referred to. Apart from housework, particularly during the first 12 months, there is no evidence of any other significant contribution having been made by the defendant.
So far as Lot 688 is concerned I am satisfied that the financial and non‑financial contributions made directly and indirectly by the plaintiff for the acquisition conservation and improvement of the property were far in excess of those made by the defendant. His involvement in the property extended back to the early 1990s.
I note that the defendant was in possession of Lot 688 from the middle of 2008 until the beginning of 2009. If the notional charge of $140 per week was made for her occupancy the value of that occupancy could be valued at $3,500.
The plaintiff has enjoyed possession of Lot 688 from the beginning of 2009 to the present time. Applying the same notional rent it would be appropriate to value his occupancy at $21,000.
If a notional $3,500 is debited against the defendant for her sole occupancy and a notional $21,000 debited against the plaintiff for his occupancy there would be a balance in favour of the defendant of $17,500.
Lot 622
The defendant’s contribution to this property was:
·    The fortnightly interest instalments of $185. Between the 21st of July 2006 and 4 January 2008 she made 36 instalments totalling $6,660.[39]
·    1 May 2006 - A deposit of $4,500.[40]
·    29 October 2007 - An amount of $10,000.[41]
·    6 December 2007 - A deposit of $7,000.[42]
[39] Exhibit IJK18.
[40] Plaintiff's Affidavit para 78 and Exhibit IJK20.
[41] Exhibit IJK18.
[42] Exhibit IJK18.
The plaintiff made a direct financial contribution of $25,830.16 to Lot 622 when he repaid the debt due to the National Bank on 4 January 2008.
As I have mentioned the defendant had contributed three other sums totalling $21,500.
The defendant received rent of $400 per fortnight from 9 May 2007 to 24 October 2007 and from 11 November 2007 to 16 July 2008. The amount received should have been about $12,500. I observe that the rent which was received each fortnight was slightly in excess of the interest instalments. In reality the defendant’s financial contribution to the purchase of Lot 622 came from the tenant and the defendant was not out of pocket in respect of the payments to the National Bank for the purchase of Lot 622.
The plaintiff’s evidence is that the defendant paid about $15,000 for materials in respect of the renovation to Lot 622.
In addition to his financial contribution the plaintiff purchased materials and spent a considerable amount of time carrying out work. The extent of the renovations conducted by the plaintiff is demonstrated by the photographs. It was a significant contribution in excess of the defendant’s contribution.
I accept that the intention of the parties was that the beneficial interest in Lot 622 was to be held for the benefit of both plaintiff and defendant. As is the case with Lot 688 that is demonstrated by the preparation of transfer documents by the solicitors.
The plaintiff proposes an order that Lot 622 be sold and the proceeds divided between the parties. The plaintiff also proposes that a lump sum and the plaintiff’s costs be deducted from the defendant's share.
Discussion
The defendant was in employment during the relationship and left Andamooka to take up other employment.
The plaintiff was in receipt of social service benefits which he supplemented as a hobby Opal Miner. I would be reluctant to find that the plaintiff has no earning capacity because there is evidence that he carried out a great deal of work on Lot 622 There is no evidence as to the actual income of either party and their earning capacity is not something which I can take into account.
One topic which has not been agitated is the way in which the payments made by the plaintiff towards the purchase of the two properties should be treated. For example there were the two payments of $25,830.16 and $18,218.74 which were made by the plaintiff on 4 January 2008. The evidence does not disclose whether those payments were gifts by the plaintiff to the defendant, whether they were loans by the plaintiff to the defendant or whether they were payments by the plaintiff in respect of his own interest in the properties. The way in which the action is being conducted on behalf of the plaintiff implies that any claims which the plaintiff may have had against the defendant in respect of moneys which he contributed towards the properties in her name will merge in the judgment.
While the properties are registered in the name of the defendant the matters to which I have referred establish that the major contribution, both financial and otherwise, towards the acquisition of the two properties was made by the plaintiff.
I find that the transfers which the solicitors prepared for the two properties to be transferred from the sole name of the defendant as registered proprietor into the joint names of the plaintiff and the defendant reflect the intention of the plaintiff and the defendant to have the property registered in their joint names.
Section 12 of the Act directs the court (as far as practicable) to finally resolve the questions about the division of property between the de facto partners.
There is no limit to the "other relevant matters" contemplated by s 11(1)(d.). There are decisions which establish that there is no presumption of equal division and that fault or blame is not relevant.[43] Matters that have been considered relevant include the length of the relationship, the financial resources of the parties and the respective ages of the parties.[44]
[43] Black v Black (1991) 15 Fam LR 109, Evans v Marmont (1997) 42 NSWLR 79.
[44] Dwyer v Kaljo, (1992) 27 NSWLR 728, Love v Chidley [2001] SADC 36, Condoluci v Condoluci [2002] SADC 159.
In Davey v Lee (1989) 13 Fam LR 688 at 699 McLelland J suggested that the approach in relation to an equivalent provision in New South Wales should be as follows:
It is thus apparent that the court is not required under sec. 20 to undertake a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time-consuming and expensive of litigious exercises) by examining every alleged "contribution" of the kinds described in the section with a view to putting a monetary value on it in order to reach an accounting balance one way or the other, which is to be then eliminated by the requisite financial adjustment. Rather the court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.
South Australian cases where the "holistic value judgment" approach has been taken rather than an "asset by asset" approach include Germinario v Pinkerton [2000] SADC 89, Love v Chidley [2001] SADC 36, Simmons v Williams [2002] SADC 168 and Wren v Chandler [2004] SADC 128..
Orders Sought
As I have mentioned the plaintiff seeks orders that Lot 688 be transferred to him and that Lot 622 be sold with the proceeds divided equally between the parties.
I have not had the benefit of evidence or submissions on behalf of the defendant. I cannot make a default order in a way that might be appropriate in other civil proceedings. Section 10 of the Act directs the court that the property must be divided in a way that is just and equitable and the court must take into account the matters referred to in s 11.
In my opinion, having regard to the matters which are referred to in s 11 an order for the transfer of Lot 688 and an order for the sale of Lot 622 with the division of the net proceeds between the domestic partners equally would be just and equitable. I have reached that decision of by taking an overview of all matters which I have referred to and adopting an holistic approach. The financial contributions of the parties are capable of reasonably precise calculation, but their non-financial contributions are not. The non-financial contributions can be just as important as the financial contributions.
The plaintiff also seeks a lump sum to be paid from the defendant’s share of the proceeds of Lot 622. I find that there is no evidence which justifies the deduction of a lump sum from the defendant’s share.
In a calculation put forward by counsel the plaintiff calculated his financial contributions to amount to $114,030 and the defendant’s to amount to $48,000.[45] On that basis the plaintiff would be entitled to 70.37% of the assets and the defendant 29.63%. However there are other consideration and that an approach would not be consistent with a “holistic” approach. Nevertheless the calculation is informative.
[45] Exhibit P10.
The calculation assumed that Lot 688 was valued at $135,000 and that Lot 622 would sell for $150,000. A valuer, Mr Bell, has valued Lot 688 at $135,000 as at 15 August 2011. There is no evidence as to the value of Lot 622. If the parties receive 50% of the value of Lot 622 the lack of a precise valuation may not be significant.
If the plaintiff's assumptions are correct the calculation suggests that the defendant would be entitled to $84,445.50 represented by a contribution of 29.63%. If Lot 622 sold for $150,000 the defendant’s share, before deduction of costs, would be $75,000. I do not understand the basis for the plaintiff’s submission that the defendant should make a lump sum payment out of the proceeds of sale of Lot 622 beyond the plaintiff’s costs.
Using the plaintiff's assumptions the plaintiff would receive Lot 688 valued at $135,000 plus $75,000 being one half of the estimated proceeds of the sale of Lot 622, that is a total of $210,000 or 73.68% of the total.
I have referred to the plaintiff’s calculation for the purpose of making a crosscheck. Ultimately my decision was arrived at by adopting an holistic approach for the purpose of determining what is just and equitable.
The end result is that the defendant will leave a relationship which lasted for a little over three years with a sum expected to be in the order of $75,000.
The fact that the net return to the defendant will be reduced by the plaintiff's costs is a burden which she has brought upon herself by reason of her failure to participate in the proceedings.
Costs
The plaintiff has applied for his costs of the action on a solicitor and client basis.
The plaintiff has been successful in the proceedings. If the defendant had consented to orders the cost of proceedings could have been avoided. That is a reason for awarding the plaintiff his costs, but it is not a reason for ordering costs on a solicitor and/or client basis. Where a plaintiff is successful in proceedings the normal order is for costs as between party and party. Something more is required to justify an order for solicitor and client costs. See cases referred to in Lunn Civil Procedure 6R 26485. I am not satisfied that there is anything about the present action which justifies solicitor and client costs.

I am satisfied that it would be appropriate for the plaintiff's party and party costs to be deducted from the defendant's share of the proceeds of sale of Lot 622.
For the reasons which are set out above there will be the following orders:
1.      That the defendant transfer to the plaintiff her interest as registered proprietor of an estate in fee simple in the land comprised and described in Certificate of Title Register Book Volume 5883 Folio 570 being Lot 688 Town of Andamooka.
2.      That the property situated at Lot 622 Government Road Andamooka, being land comprised and described in Certificate of Title Register Book Volume 5427 Folio 38 being Lot 622 Town of Andamooka be sold on behalf of the parties by Raine & Horne, Roxby Downs who must comply with r 249(3).
3.      That the Registrar of the Court be empowered pursuant to r 249(2)(b) to execute such documents as may be necessary to give effect to the completion of the orders in paras 1 and 2 hereof.
4.      That the net proceeds of sale of Lot 622 after payment of the costs associated with the sale and transfer including removal of the caveat registered on the said title and conveyancing fees be paid by the appointed agent into the suitors fund to be dealt with in accordance with these orders.
5.      That each party pay one half of the costs of and incidental to the transfer of Lot 688 to the plaintiff including stamp duty and lodgement fees.
6.      That the defendant pay the plaintiff's costs of action to be taxed on a party and party basis.
7.      That the net proceeds of any sale of Lot 622 received pursuant to para 4 hereof be divided into two equal parts to be disbursed as follows:
a)One part, the plaintiff’s share, to be paid to the Trust Account of Fittock Barristers and Solicitors.
b)The second part, the defendant’s share, to be disbursed.
First, in payment of the defendant’s share of the costs of and incidental to the transfer of Lot 688 pursuant to para 5 hereof.
Secondly, in payment of the plaintiff’s taxed costs pursuant to para 6 hereof.
Thirdly, the balance to be held for the benefit of the defendant.
8.      That a copy of this order be served upon the Registrar General of the Lands Titles Registration Office.
9.      That a copy of this order be forwarded by prepaid post by the plaintiff's solicitors to Ms Gina Traljic at 12 Amy Street, West Croydon, South Australia with a request that she advise the defendant of the terms of the order should the opportunity arise.
10.   That an SMS message be sent by the plaintiff's solicitors to each of the defendant’s mobile telephone number 0439 844 098 and telephone number 0444 2882 5934 in the following terms:
Dear Ms Jovanovic. The case against you by Ivan John Klinovski has now been determined by the District Court of South Australia. A copy of the decision of the court will be forwarded to you if you provide the Judicial Support Officer for Judge Clayton with an address where it can be sent. In due course a sum of money will be forwarded to you. You will need to provide an address.
11.   That a letter in the form of the annexure to this order be forwarded by the plaintiff's solicitors to Ms Biljana Urdarevic Omladinska, 85 Kacerevo, 26213 Serbia.
12.   That the plaintiff have permission to enter Lot 622 for the purpose of carrying out repairs and arranging a sale of the property.
13.   Liberty to apply.
Annexure
Dear Ms Omladinska
We understand that sums of money have been transferred to you by Mrs Drajica Jovanovic formerly of Andamooka South Australia who is your mother.
If you are in contact with Ms Jovanovic could you please request her to contact the Judicial Support Officer to His Honour Judge Clayton at the District Court, Victoria Square, Adelaide, South Australia, 5000.
Yours faithfully