M, PJ v W, JW - [2014] SADC 58

District Court of South Australia
(Civil)
M, PJ v W, JW
[2014] SADC 58
Judgment of His Honour Judge Stretton
4 April 2014
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - RELEVANT CONSIDERATIONS
The plaintiff and the defendant met in 1999 and separated in 2008. The plaintiff sought a declaration pursuant to the Domestic Partners Property Act that she was in a close personal relationship with the defendant and sought a division of property held at the end of the relationship on the basis of her non-financial contributions to the defendant. She sought an extension of time. There was substantial factual disagreement between the parties particularly as to when the parties commenced co-habitation, the extent and value of the contributions and whether the parties agreed to and did resolve their financial issues at the conclusion of the relationship.
HELD
1. The plaintiff and the defendant were in a close personal relationship as defined by the Act from January 2004 until September 2008
2. The plaintiff did contribute within the meaning of section 11 of the Act, however the plaintiff’s claim should be dismissed on the merits on the basis that the contributions of the plaintiff have already been sufficiently recognised and compensated for
3. The parties resolved and settled the claim as between themselves in or around November 2008
4. An extension of time should not be granted, as the court is not satisfied that an extension is necessary to avoid serious injustice to the applicant
Domestic Partners Property Act (SA) 1996 s9, s11; District Court Rules 2006 (SA) r 117, referred to.
Cooper v Lees [2009] SASCFC 386; Wilson v Vater (No 1) [2008] SASC 7; IW v City of Perth (1996) 191 CLR 1; Public Trustee v Newman [2012] SASCFC 18; Parker v Parker (1993) 16 Fam LR 863; Hogg v Roberts [2003] SASC 410; Parij v Parij (1998) 72 SASR 153, considered.

M, PJ v W, JW
[2014] SADC 58
The action

This an application by the plaintiff PJM for a declaration and an order for division of property pursuant to the Domestic Partners Property Act (“the Act”). The plaintiff seeks a declaration that she was in a close personal relationship as defined by the Act with the defendant JW and in all the circumstances seeks that she be awarded a division of property held at the end of the relationship.
The action was commenced 11 months after the expiry of the 12 month limitation prescribed in the Act and accordingly the plaintiff also seeks an extension of time. The parties proposed and agreed that both the trial and the application for extension of time proceed together.
If the plaintiff is not granted an extension of time, then in the alternative the plaintiff seeks declarations that the defendant holds interests in several properties, certain proceeds of sale and two companies on trust for her in such proportions the court may deem to be appropriate.
The defendant pleads that the plaintiff is not entitled to any orders for the division of his property, and that in any event they agreed shortly after separation not to pursue any claim against each other, and in particular in December 2008 they agreed that the plaintiff would return the engagement ring the defendant had given her, the defendant would not pursue the repayment of money he had lent her, and that otherwise neither party would have any further claim on each other.
In the alternative the Defendant says if that settlement agreement is not binding or accepted by the court, then he seeks the return of the money he says is owed to him.
Extension of time
The Act provides that an application for division of property must be made within one year after the end of the domestic partnership in question, unless the court, after considering the interests of both domestic partners, is satisfied that extension of this period of limitation is necessary to avoid serious injustice to the applicant.
The requirement that the plaintiff satisfy the court that ‘after considering the interests of both domestic partners’ she would suffer ‘serious injustice’ is a significant barrier to an extension of time.
No doubt this requirement reflects the obvious policy behind the Act that this kind of litigation be pursued in a timely way and resolve all outstanding issues between former domestic partners. The interests of both litigants must be borne in mind and extensions of time must only be allowed where serious injustice might flow from a failure to extend time.
In my view it is not, as a general rule, seriously unjust to hold an applicant to a time limit where they have no good reason not to have complied with it. In my view it is also not, as a general rule, seriously unjust to refuse an extension of time to bring an essentially trivial, minor or tenuous claim. Therefore, in my view serious injustice will ordinarily only flow where an applicant has a materially significant claim, and the applicant has a good excuse or there is a good reason why the time limit in the Act was not or could not be complied with.
In Cooper v Lees [2009] SASCFC 386 the Full Court held that the applicant had a ‘reasonable explanation’ for not commencing action in time, in that the applicant was not aware of the limitation period and that he had been engaged in ongoing negotiations with the respondent indicating the matters would be able to be resolved by agreement, and that the respondent asked that resolution be delayed until a personal injury action the respondent was taking was resolved. This was insufficient, as, the court said;
But having regard to the terms of s 9(3) of the Act, an explanation for a delay of more than one year in instituting proceedings is not the only relevant matter. Apart from the explanation for the delay, which I consider to be relevant, the court must consider the interests of both partners. No doubt that authorises and requires the court to have regard to the likelihood of a claim succeeding, and the impact of a successful claim on the unsuccessful party. But ultimately the court must be satisfied that an extension of the limitation period “… is necessary to avoid serious injustice to the applicant”. Injustice can include the circumstances of and reason for the delay in instituting proceedings. But more significant factors, I consider, will be the prospects of the claim succeeding, the nature and amount of the claim, and the impact on an applicant of the refusal of an extension of time.
In relation to this, the Judge said that he had decided that Mr Lees’ claim would succeed to the extent that I have outlined above.[1] For that reason, the refusal of an extension of time meant that his claim “will not be entirely defeated”. Accordingly, Mr Lees would suffer no serious injustice if the limitation period was not extended.
… I consider that this is a matter that the Judge was entitled to take into account.
It is significant that Parliament has imposed a specific time limit on claims under the Act, and that it has conditioned an extension of the limitation period upon a finding that an extension is “necessary” to avoid “serious injustice to the applicant”. While experience with other limitation periods has accustomed courts to considering reasons for delay, and the impact of delay upon the fairness of a trial, the language used by Parliament in s 9(3) seems to me to entitle the court to consider also the prospects of a claim succeeding, the amount of the claim, and relevantly, alternative remedies available to the applicant that will achieve results along the lines sought in the proceedings under the Act.
Mr Lees had a substantial success at the end of the day. The Judge must have given some consideration to the order likely to be made if a claim under the Act were to succeed. He also had regard to the settlement negotiations, although I must say that I am not persuaded that the amounts discussed between the parties were relevant.
In the end, I am not persuaded that the Judge erred in finding that, having regard to the relief that he proposed to grant by applying equitable principles, Mr Lees would not suffer serious injustice if the Judge refused to grant an extension of the limitation period. When that is coupled with the circumstance that Ms Cooper did not mislead Mr Lees, I have come to the conclusion that the Judge’s decision to refuse to extend the limitation period is not wrong.
…
It is also unfortunate, in a way, that in determining whether to grant an extension of time the court may have to consider the prospect of the claim succeeding on the merits, and the impact on the plaintiff of refusing an extension. That means that in some cases the extension claim can only be decided when all of the evidence is in. That is inconvenient.
… the end result is not satisfactory. The Act is a remedial act, conferring on the court wide and flexible powers to do what is just and equitable as between the parties. It must have been intended to provide a form of relief more flexible than that available in the application of equitable principles, and one better calculated to ensure overall justice and fairness. But Parliament has made it clear that the time limit is not easily displaced, and has limited the grounds for doing so. The consequences that I have identified flow from that.
[1] This was a claim, in the alternative, made in equity, that the respondent held the various contributions on trust for him on the basis of a resulting trust. The applicant succeeded at trial with such a claim. The Full Court held that the Act's one year time limit did not apply to the alternative claim in equity.
The plaintiff says the relationship ended on 18 October 2008. She pled in her statement of claim that in January 2008 her eldest child had just commenced year 12 and was diagnosed with Crones Disease. She pled that she had to deal with medical and emotional issues arising from this and she did not contemplate seeing a lawyer or obtaining legal advice in relation to settlement issues. She pled that she first sought legal advice from another firm in about May 2010, but at that time was receiving Centrelink payments and could not afford to instruct lawyers to institute proceedings. She pled that she consulted her current lawyers in July and September 2010 about other matters and then sought legal advice from them about this matter, resulting in proceedings being filed on 21 September 2010.
She also gave evidence about why her action was filed when it was. I have taken all of it into account; the following is a brief summary only.
The plaintiff said that she separated from the defendant on 11 October 2008 when she requested that he move out of her house,[2] which he did that day. From that time on she said in effect that the parties only had sporadic contact, with the plaintiff saying that in her mind the separation became permanent on 10 December 2008 when all communication ceased.[3] She said there was one occasion during that October-December 2008 period when the defendant came over, they walked the dogs, and the topic of money came up, about which she told the defendant that she ‘didn’t want to talk about the money, the properties, anything of that nature, business whatever, I didn’t want to talk about work.’[4]
[2]    T276, T280-1.
[3]    T283-4.
[4]    T286, line 10-13.
The plaintiff said that after 10 December 2008 she made a couple of attempts to contact the defendant, perhaps two calls and an email, however the only further communication she had was in December 2008 when she got a written message from the defendant given to her by her brother indicating that the defendant wanted his engagement ring returned and a loan of some MYOB accounting software discs, which request she complied with.[5]
[5] T287.
The plaintiff went on to give evidence in chief about how she came to file her claim nearly two years later on 21 September 2010.[6]
[6] T287 et seq and later in cross examination.
She said that when she parted from the defendant she did not know her rights in relation to bringing a claim, and initially said that she was first aware she might have a legal claim in early 2010. She said that a number of people had told her that she should do something so around that time she spoke to a lawyer friend Mr Andrew Moffa who told her in March or April 2010 that she may have a claim of the type she is now pursuing. She said that her friends had been telling her for six months prior to that, that she should do something about it.[7]
[7] T291-2.
Accordingly, the plaintiff’s evidence is in fact that the plaintiff’s friends had first alerted her to the possibility of making some kind of claim in relation to the defendant’s property by around October or November of 2009, and kept telling her until about six months later when she first spoke to Mr Moffa.
She said when she spoke to him in March or April 2010 Mr Moffa recommended two law firms, the first of which she consulted for several hours resulting in an account for $1500, however she decided she did not have the funds to continue with that firm. She then in about May 2010 consulted the other solicitors on Mr Moffa’s list, Starke Lawyers, who she instructed to act for her.[8]
[8] T289.
The plaintiff gave evidence that at the time of the separation in late 2008 she was working at the Bedford Medical Clinic[9] but that finished up in April 2009.[10] She said she resumed paid employment in July 2010 when she took up a full time position at IMVS. She said she had limited monies in her bank accounts and self-managed superannuation, although she held approximately $20,000 in the USA for currency trading.[11] She was not able to provide any documentation relating to that superannuation or currency trading.[12] The plaintiff also summarised what she said were her various liabilities, including credit card debt.
[9] T281.
[10] T289.
[11] T299.
[12] T299.
The plaintiff gave evidence she had negligible superannuation payments as at around or after the date of separation, her then fund having closed with a zero balance,[13] but that as at February 2014 she had some $17,326.[14]
[13] T299-300.
[14] T308.
Further, from late 2008, the plaintiff formed a relationship with a new partner which continues as at the date of trial. The plaintiff gave evidence she had received $19,000 in January 2014 from that new partner for trading activities,[15] however there was no evidence as to what access or potential access she may have had to her new partner’s funds during 2009 and 2010. She also received a redundancy payment of $24,500 that month, $17,000 of which, in effect she also transferred to her trading activities, resulting, she said, in just under $36,000 in her account for the purposes of trading. No documentation concerning that trading account for that period was provided, nor indeed relating to any of the trading activities, accounts or balances relating to either currency or shares that the plaintiff said she had been variously conducting at times over the years.
[15] Reflected in a deposit to th plaintiff's company on 17 January 2014 of $19,000; shown in exhibit P6.
It is, I find, unclear what funds the plaintiff had access to for the period between her separation from the defendant and the filing of the application, and what the financial arrangements with her lawyers are. As later discussed, I am unable to accept the plaintiff’s evidence about the profitability or otherwise of her overseas currency trading and accordingly the exact extent of her financial position over the period prior to commencing action.
The plaintiff gave evidence that her son had been diagnosed with illness, and had a range of treatment during 2008, however not to the degree whereby his schooling was materially impeded as he successfully completed year 12 at the end of 2008.[16]
[16] T293 and at other times in XN and XXN.
The overwhelming impression the plaintiff gave in her evidence about her finances was of an intelligent, precise and shrewd financial operator.
Prior to cohabiting with the defendant she had already been though one separation and financial settlement with her husband, also securing child support payments, all of which had been fully resolved without the assistance of lawyers. She was experienced in the financial industry having trained in online trading and having undertaken both online share trading and overseas currency trading, including teaching such trading to others. She had her own self-managed superannuation fund. She had bought and successfully run a boutique motel during the course of her relationship with the defendant, achieving a significant capital profit on sale. Over the course of the relationship with the defendant she plainly funded two children’s upbringing including sending them both to private schools and funded regular extended overseas holidays for herself, notwithstanding an ostensibly tiny taxable income. These are but a few of the examples whereby the evidence demonstrated that the plaintiff possesses considerable financial acumen and awareness.
In the totality of such evidence I am not persuaded on the balance of probabilities that the plaintiff would have been or was unaware of her right to pursue action of some sort over her domestic partnership with the defendant until friends told her to do so in October or November 2009 or when she said she first consulted lawyers in April 2010. I find on balance that although at all relevant times she would have known she could pursue a claim of some sort against the defendant, and whilst she may have been under some financial pressure, she decided not to do so until she consulted lawyers and received whatever advice she received from her current solicitors, and that she took that decision some time between receiving the final correspondence and account from her first solicitors in late June or early July 2010[17] and the commencement of these proceedings on 21 September 2010.
[17] That correspondence was discovered during trial and tendered by the defendant in the course of the plaintiff’s XXN. It is exhibit D6.
I must also consider the nature and amount of the claim, the prospects of the claim succeeding, and after considering the interests of both the plaintiff and the defendant, the impact on the plaintiff of a refusal of an extension of time.
As the parties have requested and agreed that I hear the application for extension of time together with the full trial evidence and the substantive application, I can simply adopt my findings, such as they may be, on the substantive application itself, and also what I would decide on the alternate claim in equity should the extension not be granted, in determining the application for extension of time.
For the reasons that I give below, on the substantive application, I find that the parties were in a close personal relationship from January 2004 to September 2008. I also determine that while the plaintiff did make some contribution to the defendant’s acquisition of property and other relevant matters as articulated in the Act, the contributions of the plaintiff have already been sufficiently recognised and compensated for. Although I have not given detailed separate reasons for doing so, for the same reasons I would also dismiss the alternate claim in equity.
I find that the plaintiff at all relevant times is on balance likely to have known that she could take action seeking a financial resolution of property and financial matters with the defendant, but simply did not make the decision to do so until the time she did so. I do not accept on the balance of probabilities that she was not aware she could make a claim until she spoke with Mr Moffa, nor do I accept on the balance of probabilities that she could not afford to commence a claim until when she did. It is not established on the balance of probabilities that the plaintiff had in the period between the end of the close personal relationship and when she commenced action any good reason why the very action she in fact commenced could not have been commenced within time. I do not accept on the balance of probabilities that she did not have access to either sufficient funds or arrangements with solicitors whereby action could have been commenced, within time.

Accordingly I find as a matter of fact that the plaintiff was aware of her rights and capable of exercising them within time, but simply did not decide to do so until she did, and that there was in a legal sense no good reason that she did not. I accept that she may not have been aware of the specific limitation period prior to consulting lawyers in April 2010, but was then aware of the time limit. I find that the defendant did nothing to mislead the plaintiff or cause her to exceed the limitation period.
As mentioned I find that were the plaintiff’s claim to proceed to substantive judgement, it would be unsuccessful in any event, because as indicated while the plaintiff did contribute to the defendant in non-financial ways within the meaning of section 11 of the Act, per section 11(1)(b) the defendant’s contributions to the plaintiff and her family exceeded the contributions made to the defendant by the plaintiff, and therefore it is not appropriate to make any order for division of property as sought by the plaintiff as the contributions of the plaintiff have already been sufficiently recognised and compensated for.[18]
[18] Young J in Parker v Parker; cited with approval by the Full Court in Hogg v Roberts .
In light of these conclusions, I find that there is no serious injustice to the plaintiff in not granting an extension of time, and accordingly per section 9(3) of the Act an extension ought not be granted.
Non-compliance with Rule 33
Rule 33 requires a plaintiff with a monetary claim to give the defendant an offer to settle together with detail of the claim and sufficient supporting material to enable the assessment of its reasonableness, at least 21 days prior to commencing action. The failure to comply with Rule 33 can be taken into account when the court awards costs of the action. Where the rule is not complied with the plaintiff must endorse the originating summons with the reason for non-compliance.
The plaintiff endorsed her originating summons to the effect that she did not comply with Rule 33 of the District Court Rules as she was already out of time.
However although the plaintiff endorsed her summons ‘The plaintiff has not complied with Rule 33 of the District Court Rules due to Statute of Limitations considerations’, and accordingly the court expected the plaintiff to address the issue, when questions were addressed to her on it her counsel took the position that, notwithstanding her having raised it, it was not applicable and she should not be required to answer or address why no pre-action letter had been sent. Counsel cited a master’s 2008 ruling in this respect, in which Master Lunn said that[19]
The primary power of the Court under ss 9 and 10 is to make a division of property between the parties. A judgment in monetary term (sic) is only one of several possibilities under s 10(2)(c). The Court may well resolve an action under the Act without giving any judgment in monetary terms. Therefore, it cannot be said that an action which only involves the Act can be an action based on a monetary claim. Here the plaintiff in her statement of claim has not specifically sought any judgment in monetary terms.
[19] Wilson v Vater (No 1) [2008] SASC 7.
It is not completely clear whether the Master was indicating that no claim pursuant to the Act would ever attract Rule 33, however a close reading reveals that the decision is limited to the action in question then before the master. Elsewhere in the ruling it is said;
The essential issue is whether this action is “a ….. action based on a monetary claim” for the purposes of 6R 33(1). There is no authority on the point.
There is little reported authority on the meaning of “monetary” in such a context. In Vee H Aviation Pty Ltd v BP Australia Ltd (1995) 136 ALR 727 it was accepted without argument that an unliquidated claim for damages was a monetary claim. I adhere to what I have said in my commentary in Civil Procedure South Australia Vol 2 at [MCA s 3.35] that the term “monetary claim” in the definition of “small claim” in s 3 of the Magistrates Court Act 1991 means any claim, whether liquidated or unliquidated, for a judgment in terms of a sum of money based on any cause of action cognisable by the Court.
On such analysis, if the primary claim in an action pursuant to the Act is a claim for a judgement in terms of money whether liquidated or unliquidated, then Rule 33 will potentially apply.
From a public policy perspective, actions pursuant to the Act obviously cry out for the parties to do all they can to settle. These actions commonly rake over the ruins of a terminated or abandoned relationship, and as such can be lengthy, expensive, traumatic and draining for all concerned. There is every good public policy reason to strongly encourage parties contemplating such action to serve a notice of claim and offer to settle prior to commencing proceedings.
Indeed more recently in The Public Trustee as Litigation Guardian for Imre Pinter v Newman [2012] SASCFC 18 the Full Court said;
Rule 33 is intended to be beneficial in its operation – namely, to provide early and informed settlement in the interests of the parties and the public – and should be so interpreted. A liberal construction to remedial or beneficial provisions was endorsed by the High Court in IW v City of Perth, where Brennan CJ and McHugh J observed:[20]
[It is a] rule of construction that beneficial and remedial legislation … is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural [Footnotes omitted.]
The purpose of Rule 33 is clear. It requires an intending plaintiff to put forward an offer to settle a proposed claim accompanied by adequate particulars and supporting expert reports. The expression, “offer to settle” contemplates an offer being made in terms that are capable of acceptance so as to finalise the claim. It then requires the proposed defendant to respond to the plaintiff’s offer. The Rule contemplates that where an insurer may be involved, that insurer has notice of the claim. All of this is to occur well before the issue of proceedings. It may be concluded that the object of the Rule is to encourage and facilitate an early resolution of the dispute and if there can be no resolution, to facilitate an efficient processing of a claim by the Court through the early articulation and narrowing of issues and the focussing of the parties’ attention on matters genuinely in dispute.
Having regard to the foregoing, the Rule should not be interpreted in an unduly technical or restrictive manner. It should also be borne in mind that the Court has power to dispense with the requirement of any Rule.[21]
[20] IW v City of Perth (1996) 191 CLR 1, 12.
[21] Pursuant to Rule 117 of the District Court Rules 2006 (SA).
The reality of this action is that the plaintiff claims she provided non-monetary contributions to the defendant generally and also in several specific respects to help him with various rental properties he owned or was dealing with. Even though she pleads in the alternative that if her extension of time application is refused she claims an equitable interest in the properties, none of her contributions were of a magnitude that it could realistically, in my view, be suggested that any of the properties be transferred to her.
Given all that, it is hard to see why the plaintiff could not have quantified the sum she ultimately sought and claimed it in a pre-action notice proposing settlement per Rule 33.
Indeed in final addresses it became plain that the plaintiff’s case is for a monetary sum based on a percentage contribution to the defendant’s assets. She submits that her contribution be quantified in monetary terms and orders be made that the defendant pay her the money value of her contribution. The plaintiff seeks 20-25% of a suggested net asset pool of two million dollars, which she quantifies as “a lump sum figure of between $400,000 and $500,000”.[22]
[22] Paragraphs 1 to 6 of section 16 on page 41 of the plaintiff’s written final submissions.
The Full Court has held that an offer to settle pursuant to Rule 33 need not be expressed solely by reference to dollar amounts.[23]
[23] Public Trustee v Newman [2012] SASCFC 18, where in an action for personal injury the Full Court said; “We acknowledge that an offer to settle need not be expressed solely by reference to a fixed dollar amount. It may, at least in part, make an offer by reference to a formula, for example, an offer to pay reasonably incurred outstanding medical expenses.”
For these reasons I indicated to the parties in the course of the hearing that I was not convinced that Rule 33 was necessarily inapplicable to the plaintiff’s action before me, and that accordingly if either wished to address it in evidence then they were free to do so.
Given the current stage of proceedings, and that Rule 33 is only potentially relevant subsequent to the delivery of this judgement, it is unnecessary to finally decide its applicability at this time, and I will hear counsel further on the issue in light of the judgement.
Actions for division of property pursuant to the Domestic Partners Property Act
The Act provides that where two people have lived together as a couple within South Australia on a genuine domestic basis for at least three years, either can apply to the court for a division of property belonging to either or both persons. It is agreed that the parties in this matter lived together in such a relationship for at least that time.
It is plain that the Act is designed to effect a timely and final resolution of disputes over property arising between unmarried domestic partners. That much is plain from the short time within which the action must be commenced, and the requirement that to extend that short time an applicant must establish that the extension is necessary to avoid serious injustice. In other words, mere simple injustice, unfairness and/or the balance of convenience are insufficient bases to justify an extension of time.
In this respect it is also apposite to note that the Act also requires the court to, insofar as it is practicable, finally resolve all outstanding questions about the division of property between domestic partners and avoid further proceedings between them.
Section 10 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.’
Section 11 sets out the criteria that a court must apply on the making of such an application.
11—Matters for consideration by 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 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.
In Hogg v Roberts [2003] SASC 410 the Full Court discussed the approach a court should take to a provision of this kind;
10 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.
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.
12 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.
13 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.
14      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.
15      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 homemaker 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 McClelland 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.
16    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.
17 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.
18 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.
19      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.
It is plain therefore that the test primarily focusses on financial and non-financial contributions to the acquisition, conservation or improvement of property and financial resources.
Issues in the substantive case
The primary issues in the case are the date when the parties commenced their ‘close personal relationship’, what each party relevantly contributed to the property and to the financial resources of either or both, and what they contributed to each other and to the plaintiff’s children. It is also a primary issue whether the parties agreed a resolution of the property and financial issues between them at the conclusion of the relationship.
The breadth of the dispute and the issue of credibility
There was substantial dispute about many things said to have occurred. Each party gave lengthy evidence, recounting the events of their relationship in fine detail. There was significant divergence in that evidence in many respects.
Having closely considered that evidence, some of that divergence is explicable by way of genuinely differing recollections and interpretations of the same history. As recently discussed in an edition of the Australian Law Review,[24] it is a phenomena long recognised;
Not only does our idea of the past become inexact by the mere decay and disappearance of essential features; it becomes positively incorrect through the gradual incorporation of elements that do not properly belong to it … The past activity of imagination serves to corrupt and partially falsify recollections that have a genuine basis of fact.[25] …
In Crouch v Hooper (1852) 16 Beav 182 at 184-185: 51 ER 747 at 748, Sir John Romilly MR said:
It is a matter of frequent observation that persons dwelling for a long time on facts, which they believe must have occurred, and trying to remember whether they did so or not, come at last to persuade themselves that they do actually recollect the occurrence of circumstances which, at first, they only begin by believing must have happened. What was originally the result of imagination becomes in time the result of recollection.
In Watson v Foxman (1995) 49 NSWLR 315 at 319, M H McLelland CJ in Eq said:
Human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious considerations of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again subconsciously, constructed. All this is a matter of ordinary human experience.
[24] (2014) ALJ at page 8.
[25] Extracted from Wellman’s Art Of Cross Examination.

There however remain a number of central areas of disagreement, such as the issue of whether or not the defendant paid weekly rent to the plaintiff during their nearly five year cohabitation, which are so stark that, regrettably, someone must be lying.
The court has therefore closely scrutinised the evidence led.
Evidence called concerning the financial and non-financial contributions to the acquisition, conservation and improvement of the property of the parties
Given the width of the concept of ‘non-financial contributions’ to a relationship, and that there is significant factual dispute between the parties as to the relationship itself and the respective contributions of the parties to it, regrettably in terms of clarity and brevity, I must set out the evidence in some detail.
The plaintiff gave evidence and tendered documentary evidence. The defendant gave evidence, called three witnesses and also tendered documentary evidence.
A schedule of agreed valuations of certain real property held by the defendant was tendered by consent.
The Plaintiff’s case
The plaintiff gave very extended evidence. Her evidence in chief took more than three days. For the sake of brevity I will not repeat all or even most of it, however I have had regard to it all. What follows is an overview only, necessary to understand the overall picture.
The plaintiff is a 47 year old woman, born in Port Augusta. She completed year 12 there, and then a bachelor of science in Adelaide. After some further study she secured employment at IMVS for a couple of years until she married in 1989 at the age of 22. In 1990 the couple moved to Victor Harbour, then later back to Adelaide where they bought a block of land at Waterfall Gulley and built a house. In around 1993 they started a graphic design business. The plaintiff had two children with her husband, but separated from him in 1999.
The plaintiff said that while she was moving to a rental property in Hyde Park she met the defendant at her friends’ house. She said she could date when she started seeing the defendant by a poem, which she recited to the court, which included the date 4 September 1999. She said a sexual relationship commenced sometime before the end of that year.
The plaintiff gave evidence that on separation from her husband the matrimonial home had been sold and after payment of debts, expenses and setting herself up in rental accommodation with the two children, she was left with about $20,000 from the sale.
She set up her own company which I will refer to as TW. The plaintiff invested the $20,000 into online trading through a company called “Day Trader”. The plaintiff said that she had access to the float of a certain company in which she and the defendant separately invested, which increased greatly in value before returning to its original price. The plaintiff said she took out $20,000 in profits over a period of about 6 months. In 2000 she started teaching for that company as well, and did that for 12-18 months.
In August 2000 the plaintiff moved with her children to new rental accommodation at Black Forest as she had been given notice to vacate Hyde Park. She said that it was the closest available rental premises to the defendant’s house. She said that the defendant was living in his own property, but that after she moved to Black Forest she and the defendant spent more time together, and he would come over for an evening meal most nights. She said the defendant never stayed the night at the Black Forest property if her children were there. The children would stay with their father every second weekend, and that is the only time the defendant would stay over. She said he would stay over ‘most nights’ at such times when the children weren’t there.[26] The plaintiff said that the defendant would however babysit her children on occasion. She said the defendant was doing his MBA and she would help by doing things like typing and proofreading. They would run and go to gym at various times. He brought a DVD player over, and a second fridge for drinks. The plaintiff said they would attend the supermarket together, but shop separately, each paying for their own groceries, although she would buy some items for him as well.
[26] See also XXN at T399.
The plaintiff said that by 2001 she was also teaching Yoga and that her employment with Day Trader phased out.[27]
[27] T57.
During her time at Black Forest the plaintiff said that she and the defendant went on holidays together at various times. She said they went to Egypt in 2001, the UK in 2002 and climbed Mount Kilimanjaro in 2003. Each paid their own way.
In relation to the 2003 trip the plaintiff indicated that due to the perceived danger of climbing Mt Kilimanjaro they decided to make out wills. They attended solicitors’ offices, gave instructions, got advice and did so, executing their wills on the same day. The plaintiff tendered her will, dated 18 June 2003.[28] That will left her estate to the plaintiff’s children and made no provision for the defendant, but appointed him executor of the estate. Later in the course of evidence the plaintiff said that she did make provision for her property to go to the defendant by making him executor, however her evidence on this topic, plainly wrong at law, was also unconvincing. If the plaintiff had instructed the named solicitors concerned that she wished to make provision to leave any of her estate to the defendant, even on a contingent or residual basis, I have little doubt that would have happened.[29] The plaintiff said they both attended on the same day and signed their wills together, on 18 June 2003.[30] When, in cross examination, it was put that the defendant could not have done that as he had left for South Africa on 7 June 2003 (to compete in an ultra-marathon), the plaintiff agreed that if he wasn’t in Australia then ‘then, that’s the case.’[31]
[28] Exhibit P3 at page 153.
[29] See also XXN at T378-385.
[30] T153.
[31] T382-3.
During that time at Black Forest the plaintiff said that the defendant took several trips without her, including to Thailand and Zimbabwe in 2000, as well as competing in several ultra-marathons in South Africa by himself over those years.
Loan by the defendant to the plaintiff of $12,500 in January 2002
The plaintiff said that the defendant lent her $12,500 for the purpose of trading currency on or about 29 January 2002, and the parties executed a formal loan agreement to that affect.[32] She agreed she owed this money to the plaintiff throughout their subsequent relationship and had not paid any of that back.[33] Accordingly this is a direct financial contribution of $12,500 by the defendant to the financial resources of the plaintiff.
[32] Page 1 of exhibit P2.
[33] T163, the loan agreement appears at page 1 of exhibit P2. The plaintiff said that later in the relationship the defendant forgave all her debt to him, including this debt.
Hotel purchase by the plaintiff in 2001-2002
The plaintiff said that at the end of 2001 or very early 2002 she purchased from a friend a half share in a city motel for ‘approximately $120,000’.[34] She initially financed that with loans totalling $125,000 from her mother and aunt, agreeing to pay them 10% interest per annum. The plaintiff tendered her own MYOB accounting records recording the payment of interest to her mother and aunt from July 2002 to April 2004.[35]
[34] T58.
[35] Pages 1-3 of exhibit P1.
The plaintiff ran the hotel with the other owner, which provided her with some income. Although schedules tendered by the defendant indicated that the plaintiff had a very limited assessable income at that time,[36] the plaintiff indicated that she was able to draw funds from the hotel business that were not treated as assessable income.[37]
[36] Exhibit D1.
[37] T342.
A perfunctory comparison between the plaintiff’s assessable income and the expenses she says she was paying including the rent, living expenses, private school fees for two children, and the extensive overseas travel undertaken by the parties,[38] can only result in the conclusion that certainly between the time she moved into Highgate in August 2003 to the point when she received initial payments for the sale of the hotel in January 2006, the plaintiff must have been receiving considerably more funds or financial support than are represented by her declared income, together with the very limited child support and Centrelink/family payments she was at times receiving.[39]
[38] 3 weeks in Egypt in 2001, 4 weeks in the UK in 2002, 3 weeks in South Africa and Tanzania including climbing Mt Kilimanjaro in 2003, South Africa Uganda and Mauritius in 2004, South Africa in 2006, and Borneo in 2007 taking the plaintiff’s children. The plaintiff gave evidence that with the exception of Mauritius which was an engagement present given to her by the defendant, each paid their own way on all of these trips.
[39] Indeed the rent alone of $420 then later $400 a week at Highgate substantially exceeded the plaintiff’s taxable income for every year she was there. $400 a week is $20,800 per annum. D1 the schedule of the plaintiff’s taxable income indicates her taxable income for the following years was;
2002 - $10,699
2003 - $11,197
2004 - $11,389
2005 - $11,410
2006 - $7,089
2008 - $2,470
The nature of the relationship prior to cohabitation at Highgate from late 2003/early 2004
The plaintiff claimed she was in a close personal relationship with the defendant from August 2000.[40] She said they spent a very substantial time together from that time onwards.
[40] Statement of Claim, paragraph 4.
The plaintiff agreed she received a single parent pension from when she separated from her husband in 1999 through until 2002 when due to other income it ceased. She resumed receipt of a single parent pension in 2003 or 2004 which continued until the beginning of 2006.[41] The plaintiff also agreed that she was aware of the obligation to report to Centrelink if she entered a de facto relationship, and agreed she did not do that while she was receiving the sole parent benefit at any time while she was in receipt of it between 1999 and late 2001/early 2002. She said it was because she and the defendant were not residing full time under the same roof.[42]
[41] T311-3.
[42] T375.
Overall, the plaintiff agreed that while she lived at Black Forest and prior to moving to Highgate that she and the defendant maintained and slept in their own separate houses,[43] that they did not jointly purchase any furniture,[44] that he did not keep any clothes at her place nor have any wardrobe space there,[45] that they shopped and paid for their own separate groceries,[46] and that they were responsible for all their own separate bills and accounts. They did not work together,[47] they paid for their own holidays, albeit in part from a joint account to which they both contributed. She agreed that the defendant never slept over when her children were there, which was most nights. She agreed the defendant kept his fish tank and pet fish at his own house, and he received all his own mail at his own house. She agreed that the defendant did his own washing, and did it at his own house, although on ‘minimal’ occasions she said she did a little ironing and folding.[48] The plaintiff made all the decisions and arrangements concerning her own domestic living and her children. For the entire time they had separate vehicles which they separately paid for and maintained.[49] For all the time at Black Forest, they neither bought any assets together nor did they enter any debt transactions together.[50]
[43] Except one weekend a fortnight when her children we away on access visits with their father, and initially some other Monday nights when there was a short lived arrangement for the father to take the children on such Monday nights.
[44] T377.
[45] T377.
[46] The plaintiff said she purchased extra to feed the plaintiff when he was there for dinner.
[47] Except in relation to a brief foray into a spray vitamin product some time during 2000-2001.
[48] T385.
[49] T217.
[50] T387.
However, that said, the parties were plainly in a romantic relationship, and did a range of things together. On the totality of just the plaintiff’s own evidence, the overall picture of the period at Black Forest between 2000 and whenever the defendant moved in to Highgate at the end of 2003 or start of 2004, was of a close boyfriend/girlfriend relationship rather than of people ‘living together as a couple on a genuine domestic basis’ within the meaning of the Act.
Moving in together at Highgate
The plaintiff gave evidence that in August 2003 she moved to the new rental premises at Highgate. She said that the defendant moved in over the next two months, saying that she knew it was ‘prior to Christmas’ 2003.[51]
[51] T105.
The plaintiff agreed that the defendant had no role in selecting the Highgate house, securing or entering into the lease or initially paying the rent, nor did he move in when she and her children did.[52] She agreed there was no element in that of the plaintiff and the defendant selecting a home together.[53] I find this a strong indication that the parties were still not domestic partners at the time the plaintiff moved to Highgate.
[52] T444-5.
[53] T445.
The plaintiff denied that the defendant’s fish tank and large items of furniture were not moved in until January 2004, and that he did not move in until then, saying she thought it was earlier than then.[54]
[54] T447.
Rent and outgoings at Highgate for the period 2003/4-2008 when the parties lived together
The plaintiff said that nothing was discussed about rent when the defendant moved in to Highgate, or for quite some time. The plaintiff said the defendant would pay nothing towards other bills or utilities although once they moved in together at Highgate they would take turns to pay for groceries week in week out.[55] She said that either in the first six months of 2004, although it may have been the first six months of 2005, she first raised the topic of rent, to which the defendant replied that he had other business affairs in Tasmania that were not going well and that he was concerned about the possibility of bankruptcy, so she left it and did not discuss it with him again.[56] She said they holidayed in Tasmania around that time, during which the defendant also addressed his business venture there and she helped in various ways including doing the accounts for some months. The plaintiff gave evidence that they went to Tasmania again in 2006 to pick up a vehicle from that venture, and on that occasion also holidayed there, which included a stay at Cradle Mountain Resort.[57]
[55] T214.
[56] T209-210.
[57] T220-8.
In cross examination the plaintiff repeated her evidence that when the defendant moved in with her at Highgate, which according to the plaintiff was in late 2003, there was no discussion whatsoever about what his financial contribution might be to the household, and that it may not have been until 2005 that she spoke to him about the rent and outgoings.[58] She denied that there was an arrangement whereby the defendant would pay her the cash rent he received from the tenant Mr R at his unit, initially $140 a week and subsequently $160, and denied that on some occasions at coffee on Saturday mornings after their exercise group the tenant would join them and pay her the cash directly.[59] She denied she ever got cash for any reason whatsoever from the tenant Mr R.[60]
[58] T448-410, T448-455.
[59] T456-461, although she agreed she saw the tenant attend and pay the defendant cash at coffee on at least one occasion.
[60] T460-1.
It was apparent from defence counsel’s cross examination of the plaintiff that the defendant was planning to call Mr R to give evidence supporting the defendant’s case that the defendant paid the plaintiff cash rent from the cash rent the defendant received from Mr R.
In re-examination the plaintiff gave evidence that in fact on one occasion she was going to the café and the defendant told her that she was going to be given cash by Mr R. She said she went to the café, was given the cash by Mr R which she gave to the defendant. Then she said she did not see the cash as it was in an envelope.[61]
[61] T710-1.
The plaintiff also alleged in re-examination that the defendant was involved in illegal drug cultivation activity at the property rented to Mr R, and that when that stopped the defendant told her he was going to tell Mr R that Mr R’s rent had to increase, and that the defendant told the plaintiff that he was going to lie to Mr R and say to Mr R that he was doing that because he had to pay rent to the plaintiff, which was not true.[62] This evidence left me with a sense of unease immediately it was given. The immediate impression I had was that it was designed to damage the defendant’s and his potential witness Mr R’s character, and to construct an explanation as to why Mr R might say he was aware that the defendant was paying rent to the plaintiff when that was not the case.
[62] T702-711.
The plaintiff’s evidence that there was no suggestion, offer or even discussion about the defendant paying rent at Highgate or contributing to household expenses such as utilities when he moved in in 2003 until possibly as late as 2005, and that he then raised financial problems in Tasmania and mentioned bankruptcy, which caused the plaintiff to drop the subject until 2008, and that he never paid anything towards rent or any of those expenses until she requested he do so on three isolated occasions some years later, sounded inherently unlikely.
During that time the parties were taking interstate and overseas holidays and the defendant was lending the plaintiff large amounts of money, behaviour arguably quite inconsistent with the defendant being under threat of bankruptcy. Further, it seems highly unlikely, given the precision with which it is plain the parties carefully accounted for and ordered other aspects of their financial lives both in general, and to be fair to each other, that they would not have discussed the financial arrangements for cohabitation at or before that co-habitation commenced. It is almost impossible to believe, as the plaintiff claimed, that such a major issue was not discussed for months, perhaps years, after initial cohabitation at Highgate. Further, the suggestion that the defendant made virtually no contribution to the plaintiff’s rent and outgoings sits very uncomfortably with a comparison between the plaintiff’s very limited claimed sources of income and her considerable expenditure, including private school education for her children and extensive overseas travel, particularly prior to her January 2006 sale of her hotel.
Overall, in light of the plaintiff’s evidence in its entirety, her evidence that they did not initially discuss rent and outgoings, and that he virtually never contributed to them, was simply not credible.
Domestic activities and contributions while parties living together at Highgate
The plaintiff gave evidence that she paid all the domestic outgoings at Highgate, with the defendant never contributing at all to electricity, gas, telephone or internet.[63] She said they alternated with the grocery shopping although the defendant took over most of the grocery shopping in 2008 at her request. Each maintained and paid for their own vehicles. She agreed he paid their private health insurance. [64] The plaintiff said that she paid for a cleaner for the first year, after which she did most of the cleaning at Highgate, although she tried to get the family to do it as a group at one stage. She said that at a couple of other stages she also employed and paid a cleaner.[65] The plaintiff said she did the washing but that the defendant would help.[66]
[63] T214.
[64] T215.
[65] T273-5.
[66] T275.
In cross examination the plaintiff agreed that the defendant may have contributed cash for cleaning on two occasions.[67] She agreed that the defendant would cook barbeques on weekends and more often than not he would cook a Weber meal on Sunday night which would also provide Monday night’s meal.[68] She agreed that if she cooked the defendant and the children would do the dishes.[69] The plaintiff agreed the defendant vacuumed on several occasions but said that she vacuumed the house a good deal more than the defendant and that she would generally clean and tidy on Fridays.[70] She agreed that for periods over the time at Highgate the defendant would drop the children off at the end of the street near their school each morning, and would play a role in dropping them off and picking them up from their weekend sporting commitments.[71] She agreed that they each paid for their own personal needs such as clothing.[72] She agreed the defendant had primary responsibility for mowing the lawns of the somewhat large block, although they both contributed to gardening in various respects.[73] She agreed the defendant usually took the bins out.[74] She agreed he contributed to loading and unloading the dishwasher.[75]
[67] T461.
[68] T462.
[69] T463.
[70] T463.
[71] T464.
[72] T681.
[73] T682.
[74] T683.
[75] T683.
Loans by the defendant to the plaintiff totalling $162,000 in April 2004

The plaintiff said that in the course of 2004, after the defendant had moved in, the defendant suggested keeping the financing of her hotel ‘in house, per se’[76] and that to help the plaintiff he would draw down on his own existing home loans and lend the money to the plaintiff to pay out her aunt and mother, with the plaintiff paying the bank interest meaning the plaintiff would pay less interest than the 10% she had been paying to her mother and aunt. The plaintiff said that the defendant did that and transferred ‘in fact in excess of the amount that was due my Aunt and mother’. She said the plaintiff in fact lent her $162,000 between 28 April and 3 May 2004, and from those funds she immediately paid her mother and aunt back a total of $132,052.88.[77]
[76] T59.
[77] T65 and page two of exhibit P2.
In cross examination the plaintiff was not completely sure why she had borrowed significantly more than she needed to repay her aunt and mother; she said she did not recall it being about renovations but an extra $20,000 might have been for living expenses and school fees or ‘it may have been to go into a trading’,[78] and she could not recall what the final $10,000 of the $162,000 lent to her was for.[79] She denied asking to borrow the funds, saying it was the defendant’s idea,[80] and denied not telling the defendant about a $50,000 loan she got from her mother in January 2007.[81] It was common ground that when the plaintiff obtained that $50,000 from her mother in January 2007 she did not use it to repay the defendant any of the monies she had received from him.
[78] T510.
[79] T511.
[80] T370.
[81] T368 and at other places.
The plaintiff gave evidence that she paid interest to the defendant on that money. As later mentioned, the plaintiff sold her share in the motel in December 2005-January 2006 for $400,000, receiving payment of some $357,000 of that between 20 January 2006 and 3 November 2008.[82] From this sum the plaintiff repaid $125,000 of the $162,000 the defendant had lent her, leaving a shortfall of $37,000.[83] The plaintiff agreed she never repaid the defendant this shortfall. Accordingly, on the plaintiff’s case, this is a direct financial contribution of $37,500 by the defendant to the financial resources of the plaintiff. The financial arrangements by the defendant had also saved the plaintiff interest and contributed to the plaintiff’s holding, conservation, improvement and ultimate sale of the hotel for approximately $280,000 profit.[84]
[82] See pages 105-141 of exhibit P1, in particular the schedules at pages 105 and 109-110.
[83] See pages 29-32 of exhibit P2.
[84] The plaintiff said she took no action to pursue the outstanding $43,000 from the purchaser of the hotel share, however she was acquainted with the purchaser and had continued to use a car owned by the hotel from 2006 to the date of trial.
These unrepaid loans to the plaintiff were not in dispute.[85]
[85] Although, as summarised later in these reasons, the plaintiff gave evidence that the defendant forgave all the loans at a later time.
Loans by the defendant to the plaintiff totalling $13,000 in November 2005
It is also not in dispute that there was a further loan of $13,000 by the defendant to the plaintiff on 17 November 2005, comprised of two payments of $5000 and one of $3000 on that day.[86] It is agreed the sum was paid back with interest in January 2006.[87] The plaintiff gave evidence that she asked the defendant for the money as she had been sprucing her hotel up for sale however money had not come through and she needed more money to keep the hotel running smoothly pending receipt of the sale monies.[88] This loan by the defendant therefore contributed to the plaintiff’s conservation of the hotel pending its sale and ultimate settlement.
[86] Listed in the plaintiff’s schedule at page 35 of P2 and the defendant’s schedule D2.
[87] See the plaintiff’s schedule at page 35 of P2 and the defendant’s schedule D2.
[88] T168-9.
This repaid loan was not in dispute.
There were however nine further payments of $5000 each made by the defendant to the plaintiff between 22 December 2004 and 24 September 2007.[89] The plaintiff did not deny receipt of these payments, however did not agree that they ought to be categorised as loans to her. There was also a payment to her of $5000 from the parties’ joint account on 19 December 2005. I deal with her evidence concerning each of these ten payments in turn;
[89] Exhibit D2 is the schedule of all loans the defendant says he made to the plaintiff.
Further $5000 payment by the defendant to the plaintiff on 22 December 2004
The plaintiff did not initially give evidence about receipt of any money from the defendant on 22 December 2004. It was not mentioned in any of the schedules in P2, which was the exhibit the plaintiff tendered entitled ‘The Plaintiff’s Schedules and Documents re Loans’. In cross examination the plaintiff agreed, on the basis of internet banking records put to her, that the defendant had paid her $5000 on 22 December 2004, by way of a deposit into her Westpac credit card. She denied it was a further loan, but said she could not remember what it was for.[90] The plaintiff was referred to her own schedule of interest payments to the defendant, which showed that her interest payments to the defendant increased in January 2005 by $100 a month,[91] but denied that reflected an increased indebtedness to the defendant of $5000.[92]
[90] T513-4.
[91] Page 6 of exhibit P2.
[92] T514.
Further $5000 payment by the defendant to the plaintiff on 16 November 2005
The plaintiff said that the defendant paid her $5000 on 16 November 2005. She said she was not sure why but that she had been struggling financially at the time for various reasons.[93] In cross examination the plaintiff agreed she had received that sum from the defendant, which she agreed was separate to the $13,000 loan earlier referred to. She said she was not aware of having paid that back. She reiterated she did not know what that had been for, whether it had been for her trading or for something else at the time.[94]
[93] T167.
[94] T518-9.
$5000 payment to the plaintiff from the parties’ joint account on 19 December 2005
The plaintiff said that $5000 of the parties’ joint money was transferred to her company on 19 December 2005. As that was joint money, she said that only half of it was the defendant’s money. She said she couldn’t really recall what it was for, noting from the records that half went from her company into her personal account and various other expenses including rent and credit card payments. In cross examination she repeated she did not know why that $5000 had been transferred to her or what it was for.[95]
[95] T186-9 and T559.
Cessation of interest payments by the plaintiff on her debt to the defendant after 29 August 2006
The plaintiff agreed in cross examination that as at August 2006 she owed the defendant between $42,000 and $47,000, she thought in fact $43,000. The plaintiff agreed that she ceased making any interest payments on that debt to the defendant after 29 August 2006.[96] The plaintiff said that she told the defendant she couldn’t make the interest payment that month, to which she said the defendant said ‘Don’t worry about it’ or words to that effect, which she took to be him forgiving her the entire outstanding debt. She said she thought at the time that was the defendant’s ‘way of coming to a more fair arrangement around the living expenses of the home.’[97]
[96] T235-6 and T547.
[97] T235-6 and T547-8.
Further two $5000 payments by the defendant to the plaintiff on 5 April 2007 and 29 June 2007
The plaintiff agreed that the defendant transferred $5000 to the plaintiff on 5 April 2007, and a further $5000 on 29 June 2007, totalling $10,000.[98] The plaintiff said that these payments were ‘joint funds’ which were used to pay for some of a bed they had purchased and for some of the cost of a trip which they took to Borneo. She said
“When (the defendant), when there were reimbursements, they were generally of an exact figure and his tendency was to use bank transfers for anything of that nature. I haven’t been able to ascertain through my statements some exact figure which would represent the remainder of the Borneo trip and the remainder of the funds that were payable on the bed, so two of those amounts I believe do represent at least part of the Borneo trip and the remainder on the bed.”[99]
[98] T177-9, referring to the schedule on page 58 of P2.
[99] T178-9.
Immediately prior to giving that evidence, the plaintiff described financial arrangements for those matters. The plaintiff said she paid a $3000 deposit on a new bedroom suite on 27 December 2006 and was reimbursed from the parties’ joint account for that on 30 January 2007.[100] The plaintiff said that she then paid the balance of $7376 owing for the new bedroom suite on 2 March 2007, on her credit card.[101] Accordingly the effect of her evidence was that the defendant owed her half of this sum, being $3688.
[100] T172-4, and schedule showing payment and reimbursement at page 41 of P2.
[101] T174 and schedule at page 45 of P2.
The plaintiff also said she paid a series of expenses for a trip to Borneo with the defendant and the plaintiff’s children, totalling $10,518.28, tendering a series of receipts in support of that proposition.[102] She agreed that $207.85 of that sum was however for her own children’s passports, and also that on 30 January 2007 she was reimbursed for the defendant’s share of the $1000 deposit she had paid.[103] On that analysis, the effect of the plaintiff’s evidence when those sums are subtracted was that she was owed half of $9,310.43, ie $4655.21, by the defendant for his share of the Borneo trip expenses, which together with what the plaintiff said was owed to her for the bed ($3688), would equate to $8343.21. The plaintiff, as quoted above, said that the two $5000 payments to her totalling $10,000 were ‘joint funds’ and were reimbursement for that.
[102] T174-7 and schedule at page 47 of P2;
28.11.06 Passports for children          $207.85
11.12.2006Deposit for Borneo travel    $1000.00
12.02.2007Travel on the Parade          $2960.00
01.03.2007Borneo trip Incl. airfares     $5716.52
29.03.2007Octopus travel (accom?)       $454.00
02.04.2007Air Malaysia, Sepang           $101.63
20.04.2007Seaside Travellers Inn            $78.28
[103] T175-6 and schedule at page 55 of P2.
In other words, it seemed the plaintiff was saying she had paid net sums of $7376 for the bedroom suite and $9310.43 for the Borneo trip, and was paid $10,000 of the couple’s ‘joint funds’ to reimburse her for that expenditure.
The plaintiff gave evidence in cross examination that originally those funds had been in the parties’ joint holiday account, but the funds had been transferred to the defendant in two lots of $5000 each on 27 February 2006 and 3 November 2006,[104] to help him save interest. Accordingly, so the plaintiff said, the two $5000 payments by the defendant to the plaintiff on 5 April 2007 and 29 June 2007 were, although they came from the defendant, joint money that had earlier been transferred to him to enable him to save interest.[105] It is plain from the above quote and the totality of the evidence that this represented the plaintiff’s theory as a result of looking at the accounts, rather than any actual memory of this issue and these payments.
[104] T554.
[105] T554-8.
In cross examination it was put to the plaintiff that although the defendant had received $5000 from the parties’ joint account on 27 February 2006, that was balanced by the plaintiff also receiving $5000 from the parties’ joint account on 19 December 2005, on the basis that both parties had separately paid their own travel costs which were therefore both being reimbursed out of the joint travel account. The plaintiff denied this, although she repeated that she could not recall why she had received the $5000 joint monies on 19 December, just two months before.[106]
[106] T559-560.
The plaintiff denied that the 5 April 2007 payment of $5000 was a further loan to her by the defendant and denied that she told the defendant she would add it to what she owed him.[107]
[107] T558.
In a further complication, when it was put to her in cross examination that after the end of 2005 she did not put any more money, originally $50 a week each, in the jar which then was deposited to make up the joint holiday account, the plaintiff conceded that at some point she stopped contributing money towards their joint holiday account. She said she did not know when that was, but said ‘possibly towards the end of ’06, I’m not sure now’.[108] She agreed he kept contributing after she stopped, saying that was ‘for a period of a few months.[109] She denied that by the time of the 3 November 2006 transfer from the joint account to the defendant that most or all the monies in the joint account had been contributed by the defendant. She agreed she retained the bedroom suite at the end of the relationship, together with a new washing machine the defendant had bought.[110]
[108] T562-3.
[109] T562-3.
[110] T564.
The plaintiff was cross examined specifically about the Borneo trip, agreeing that the children’s passport expenses were her responsibility and that the defendant had reimbursed her for his share of the $1000 deposit separately.[111] Then it was put to her that the defendant had in fact also separately reimbursed her for his share of the other major expenses associated with the Borneo trip, in the form of a cheque for $2,115.74 paid to her on 15 February 2007, to which the plaintiff agreed, saying ‘That sounds about right. That was the one figure that I struggled to try and find’.[112]
[111] T566-7.
[112] T567. The defendant was seemingly paying his share of the total expenses for 4 people, ie 25%, with the plaintiff responsible for paying for 3 in the form of herself and her two children.
Then it was put to the plaintiff that the defendant arranged and contributed the foreign exchange spending money for the trip, to which she replied she didn’t know but didn’t think that he would have supplied it all; ultimately appearing to agree that with respect to the cheque amount paid, the expenses for the trip were jointly worked out and shared.[113]
[113] T567-8.
Accordingly, her suggestion in evidence in chief that there was a remaining sum of $9310.43 that she had paid re the Borneo holiday which was reimbursed to her from joint funds was plainly not the case.
The plaintiff denied that the share of the bedroom suite deposit paid by the defendant, and the fact that the defendant bought all the linen, was agreed to be the defendant’s share of the bedroom suite.
On a proper analysis of this aspect of the plaintiff’s case, in effect her case is that she was entitled to a return of half the $7376 she paid for the bed from the defendant, or a reimbursement of all that sum out of joint funds. That is why, she says, $10,000 in total was paid to her by the defendant over 5 April 2007 and 29 June 2007, which were, she says, in fact joint funds that had been previously advanced to the defendant to save him paying interest. The plaintiff could not logically explain why these figures did not equate to each other. The strong impression given was that the plaintiff’s evidence as a whole on this topic was primarily based on her theories arrived at as a result of her reconstruction of documentation. It came across as convoluted and ultimately unconvincing.
Further $5000 payment by the defendant to the plaintiff on 6/7 June 2007
The plaintiff said that on 7 June 2007 the defendant transferred $5000 to her for the purposes of her currency trading. The payment by the defendant to the plaintiff was described in the transfer documents as a loan. The plaintiff said that it was so she could trade with a view to profit.[114] In cross examination the plaintiff agreed that she must have asked the defendant for the money, in the context of expanding her foreign exchange trading, but denied it was a loan, denied it was agreed that it would be added to her debt, stating rather that it was for them and their future.[115]
[114] T178-180.
[115] T568-572.
Four further $5000 payments, totalling $20,000, by the defendant to the plaintiff in September 2007
The plaintiff said the defendant transferred four further sums of $5000 to her totalling $20,000. Those transfers occurred between 19 and 24 September 2007. The transfers are variously described in the transfer documentation as trading loans. The plaintiff said that this money was for her currency trading, through a US broker.[116] In cross examination, although she conceded all four payments were described in both their bank accounts as ‘trading loans’, the plaintiff denied that they were loans. Essentially she said she had suffered a $7000 loss on a $25,000 account, she became discouraged, she talked with the defendant about options, and
“This is something, the idea – this was a venture I undertook. (The defendant) was supportive of this and encouraging of it. The idea wasn’t for me to become a successful trader for me, it was for us.”[117]
[116] T182-3.
[117] T578-590.
This evidence sits uneasily with the description of the payments in both the parties’ financial statements as ‘trading loans’. Further, although the plaintiff was at pains to liken the currency trading as something she was doing ‘for us’, she agreed that although she made money at times she never accounted to the defendant or paid him any of that, nor did she return any of the capital to him at any stage. She agreed that she kept and used the $20,000 capital and any profits she made from it.[118]
[118] T588-590.
Plaintiff’s evidence re overall monies received from and repaid to the defendant
Overall, the plaintiff agreed that, additional to the $13,000 which she had borrowed and paid back between in November 2005 and January 2006, she had received a total of $222,700 from the defendant. She maintained she had paid back $125,000 and that $10,000 of the $222,700 was in fact a reimbursement to her for the bedroom suite and the Borneo trip. She agreed that on her own evidence therefore she had received a net amount of $87,700 in funds from the defendant which she had retained.[119]
[119] T591-3.
Absence of documentation concerning the plaintiff’s online currency trading
In cross examination the plaintiff said that notwithstanding all the online trading she had given evidence she had conducted over quite some years, she had not discovered a single original document reflecting that trading.[120] When she was pressed about it, the plaintiff said that she did not have any such documents. When asked why she had no documents, the plaintiff said she had done ‘a big clean out in, at the beginning of ’09. I’ve also moved since then and I got rid of most of what I had at that time.’[121]
[120] While there are notations in her own bank accounts showing the transmission by her of monies to overseas recipients, which the plaintiff said in evidence were overseas brokers, there are no statements, accounts, correspondence, documented currency trades, or any documentation of the asserted overseas currency trading itself. She repeated that she had no such documentation in re-examination at T718. There was a single February 2014 page relating to trading contained within P6.
[121] T533-7.
In re-examination the plaintiff said she had used on line US companies for her trading but had stopped using them by 2009. She repeated that she had no paperwork whatsoever in relation to her overseas currency trading activities.[122]
[122] T718.
This explanation sat uncomfortably with the extensive documentary evidence the plaintiff produced and tendered about all other aspects of her financial history dating back many years prior to 2009, and sat even more uncomfortably with her subsequent admission that she knew she had to keep such documents for five years for tax purposes.[123]
[123] T537.

I also carefully assessed the evidence of the defendant as he gave it. The defendant was a careful and consistent witness. His evidence in the course of lengthy cross examination remained consistent and there were no glaring unlikelihoods or any material inconsistencies that in my view, in the final analysis, significantly affected his overall credibility. I found his description of the disputed circumstances of moving in together at Highgate and the discussion about financial arrangements inherently more likely than the plaintiff’s description of those circumstances. I found the defendant’s description of the events after separation and the disputed circumstances of whether there was a discussion about resolving outstanding financial issues inherently more likely than the plaintiff’s description of those circumstances. I have carefully assessed the matters raised by the plaintiff’s counsel, in particular concerning rental income and the taxation treatment thereof. In the final analysis I conclude they do not adversely affect his credibility.
Overall, the defendant was a more consistent, logical and impressive witness. On all the areas of major dispute the defendant’s evidence had the ring of truth about it, whereas the plaintiff’s did not.
The three witnesses called by the defendant were all credible and consistent witnesses who I find gave honest and reliable evidence. They supported the defendant’s evidence as indicated in the course of these reasons.
In the final analysis, on the balance of probabilities, I accept the evidence of the defendant overall. I accept on the balance of probabilities, without repeating, the version of events given by the defendant as summarised earlier in these reasons. Wherever the evidence of the plaintiff and the defendant is in dispute, I prefer the version of events as articulated by the defendant.
Conclusions as to the parties’ close personal relationship
I have had regard to all the evidence and all the authorities helpfully submitted by counsel. I have closely considered their submissions.
I find that the parties entered into a close personal relationship within the meaning of the Act when they commenced cohabitation at the plaintiff’s Highgate property, which occurred in January 2004, and that that close personal relationship ceased when the defendant, at the plaintiff’s request, moved out of that property in September 2008.
I find on the totality of the evidence that I have accepted, that prior to co-habitation at Highgate the parties did not live together in a close personal relationship as defined by the Act. They saw each other two to three nights a week, slept overnight one weekend a fortnight, maintained separate houses and finances, and did many separate activities, including the defendant taking lengthy holidays without the plaintiff. Each made their own domestic decisions and in the plaintiff’s case the plaintiff made all her own family decisions entirely by herself during this time without consulting each other.
Conclusions pursuant to section 11 of the Act
I find that over the course of the close personal relationship each of the plaintiff and the defendant were engaged approximately full time on their respective individual work lives and interests, the plaintiff in conducting various activities including online trading, teaching yoga, attending to her children and their many activities, owning and managing a city motel, acting in various voluntary or unpaid activities and in the latter stages working at Bedford Medical Clinic, and the defendant in his full time public sector position and in managing various properties.
I find that, momentarily putting aside the issues of the children, the rental properties and finances, over the course of that close personal relationship each of the plaintiff and the defendant generally assisted each other in the course of their daily lives in many ways, in the performance of domestic and personal activities.
I find that the defendant lived in the Highgate property rented by the defendant over the course of the close personal relationship, but paid fair and reasonable weekly reimbursement to the plaintiff for his share of rent and utilities for the full period of the co-habitation, initially $140 a week and eventually $160 a week. He also paid the $800 full fortnightly rent on 3 occasions when requested to do so by the plaintiff.
I find that over the course of the close personal relationship the plaintiff periodically contributed within the meaning of the Act by assisting the defendant with some of the various properties the defendant owned. The plaintiff’s contribution in relation to each of the defendant’s properties was as follows:
a) In relation to the Glengowrie property I find that the plaintiff made no material contribution.
b) In relation to the South Brighton property I find that the plaintiff attended perhaps once or twice a year between the years 2001 and 2005, and occasionally lent a hand for a short time, such that the plaintiff made a contribution to the conservation of this property that was occasional and negligible.
c) In relation to the Port Noarlunga South property I find that in 2005 the plaintiff contributed to the conservation and improvement of this property by assisting the defendant in preparing this property for rental, by working for three or four hours over two to three days.
d) In relation to the Balhannah property I find that the plaintiff made no material contribution.
e) In relation to the Delaine Avenue Edwardstown property I find that the plaintiff did contribute to the conservation of this property by occasionally attending with the defendant during the defendant’s periodic one hour maintenance visits and on a few of the occasions she did visit she assisted. I find that when the defendant moved out of this property to move in with the plaintiff in January 2004, the plaintiff contributed to the conservation of this property by assisting the defendant prepare the property for rental, undertaking a few hours each day over a single two day weekend.
f) In relation to the Port Augusta property I find that in August and September 2003 the plaintiff contributed to the conservation of this property by assisting the defendant to prepare the property for rental after it had been vacated by the defendant’s father. The assistance comprised two weekends attendance comprising six days work including travelling time, one weekend with the help of the plaintiff’s mother. I find that the plaintiff also assisted the defendant prepare this property for sale in 2007, which took two possibly three days over a single weekend, and attended on another weekend to assist to bring items from the shed down to Adelaide to be given to various people including the plaintiff.
g) In relation to land at Snells Drive Wartook in the Grampians I find that the plaintiff had nothing to do with and made no contribution to this property.
h) In relation to the Smiths Road Wartook property in the Grampians, and the Roses Gap property in the Grampians, I find that while the plaintiff did not contribute to their acquisition, she contributed to the conservation and improvement of these properties over time by travelling with the defendant to the Grampians four to five times a year. Two of these annual visits were with her children where she primarily holidayed and made small contributions to conserve and improve the property. Three of these annual visits were with just the defendant over weekends or long weekends wherein she and the defendant primarily worked on conserving and improving the properties. Doing the best I can, I estimate, broadly, that the plaintiff expended perhaps 8 days work a year on these properties for the period of the close personal relationship, although less in 2007 and only once in 2008.
i) In relation to the defendant’s properties and ventures, I find the plaintiff on occasion would help in small ways such as entering items on a computer while they were in Tasmania. Overall, this totalled at most another day, over the course of the relationship.
Overall, I find the plaintiff contributed two to three half days work on the Port Noarlunga property totalling one and a half full days, the equivalent of one full day’s work on the Edwardstown property, and nine days assistance in relation to the Port Augusta property. I estimate she contributed 8 days a year at the Grampians properties for 2004-2006, 4 in 2007 and two in 2008. I find she did assist with photos for the website and fielded perhaps two booking enquires a month for six months, totalling perhaps a further half days work in all. I add a further day to allow for the mentioned occasional small items of assistance over time. Looking at the matter in this way, I find that the plaintiff did provide overall, in very rough measure, over the course of the relationship, perhaps around 43 days of non-financial practical assistance to the conservation and improvement of the defendant’s various properties and ventures.
I find the plaintiff made no other material contribution to the defendant’s property or financial resources within the meaning of Section 11 of the Act. I have had regard to all relevant matters.
In assessing the value of the plaintiff’s contributions it is difficult to make an assessment of the degree to which the plaintiff’s efforts contributed to the change in value of each of those premises and other ventures. That is particularly obvious, for example, where her contribution might for example be a day or several days help preparing a property for rental or sale. Such help likely had no measurable effect on a rental property’s overall value and represented a tiny proportion of the total upkeep and effort expended on that property over time.
In the circumstances of such a case, it might conceivably be fairer and more equitable to approach the value of the plaintiff’s contribution in terms of the time and effort she expended than by way of trying to assess her proportional contribution to any change in value of each respective property, or the overall value of the properties. One could for example make a broad and general assessment of the value of the 43 days’ worth of cleaning, gardening, and handy man work with occasional assistance on the computer.
I also look at the matter from the perspective of an overall percentage or proportional contribution. That is a more recognised methodology of assessing a person’s contribution for the purposes of best achieving the “broad and practical approach” to what is a “just and equitable” division of property required by the authorities.[337] I note that the plaintiff made no financial contribution to the conservation or improvement of any of the plaintiff’s property, and that all finance, security, administration, repairs, capital works costs, holding costs, tradespersons, utilities, taxes, rates and overall risk was incurred or undertaken entirely by the defendant and others. I also note without repeating that in relation to each property the defendant did the vast majority of the practical hands on work as between the plaintiff and the defendant. In the case of some properties such as the Grampians and Port Augusta much hands on work was also performed by tradesmen paid for by the defendant. Overall, on the totality of the evidence, the proportional contribution of the plaintiff by way of her occasional periodic non-financial practical assistance was very small compared to the overall value of the acquisition, conservation and improvement of the properties performed by the defendant and those organised arranged and paid for by the defendant. As indicated the plaintiff made no contribution at all to some of the properties. In the nature of it, there can only be a very broad brush overall assessment made, but doing the best I can I would assess it at a maximum of 5% of the net value of the acquisition, conservation and improvement of the properties in toto over the period of the close personal relationship.
[337] Hogg v Roberts [2003] SASC 410.
I find the plaintiff made no contribution to the defendants other non-property assets.
I find that the defendant contributed to the plaintiff’s children by assisting in their care, supervision and upbringing over the course of the close personal relationship.
I find the defendant contributed to a child of the plaintiff by purchasing her a grand piano on 3 May 2004 for the sum of $3155.[338]
[338] The plaintiff initially gave evidence that she paid for the piano, then later that she could not remember who paid, then when shown the defendant’s credit card record of payment for the piano admitted that the defendant paid for the piano. See T604-604 and the credit card record of payment D6.
I find the defendant contributed to the plaintiff’s currency trading business and any profit derived thereby by having lent her $12,500 on 29 January 2002 and not seeking its return at any time during the close personal relationship conducted between 2004 and 2008, or at all, and forgave that sum at the conclusion of the close personal relationship.[339] In this way the defendant contributed $12,500 to the plaintiff’s financial resources.
[339] See plaintiff’s schedule at page 1 of P2.
I find that the defendant contributed to the plaintiff’s conservation and improvement of the half interest she acquired in a city motel in 2001-2 for $125,000 and sold in December 2005/January 2006 for $400,000, by lending her $162,000 in April/ May 2004[340] and only receiving repayment of a total of $125,000 in January/July 2006[341] and by ceasing to receive any interest from the plaintiff on that outstanding sum subsequent to 29 August 2006. The defendant forgave that sum at the conclusion of the close personal relationship.[342] In this way the defendant contributed $37,000 plus interest to the plaintiff’s financial resources.
[340] See plaintiff’s schedule at page 2 of P2.
[341] See plaintiff’s schedule at page 29 of P2.
[342] T235.
I find the defendant contributed to the plaintiff’s conservation and improvement of the city motel by lending her $13,000 on 17 November 2005 which was repaid with some interest over three dates between 12 and 25 January 2006.[343]
[343] See plaintiff’s schedule at page 35 of P2.
I find the defendant contributed to the plaintiff’s currency trading business by paying $3200 for a new computer for her on 15 July 2006.[344]
[344] See 15 July 2006 entry in Defendant’s schedule of loans made to the plaintiff D2, acknowledged in XXN by the plaintiff.
I find that the defendant contributed to the plaintiff’s funds and her currency trading business by lending her further sums of $5000 on nine occasions between 22 December 2004 and 24 September 2007, totalling $45,000, and was not repaid any of these sums. The defendant forgave these sums at the conclusion of the close personal relationship.[345] In this way the defendant contributed $45,000 to the plaintiff’s financial resources.
[345] See entries dated 22 December 2004, 16 November 2005, 5 April 2007, 6 June 2007, 29 June 2007, 18 September 2007, 19 September 2007, 21 September 2007 and 24 September 2007.
I find that as above indicated in total the defendant lent the plaintiff $12,500, $37,000 and $45,000 thereby totalling $94,500 which he did not seek the repayment of during the course of their close personal relationship, and which he forgave at the conclusion of the close personal relationship on the basis that would be a resolution of all issues between them, resulting in a contribution of $94,500 to the plaintiff’s financial resources within the meaning of section 11(1)(a)(ii) of the Act. If one regards the $3200 paid for the computer as a loan, the figure totals $97,700.
Overall, momentarily putting aside the loans and the rental properties, I find that the financial and non-financial contributions by the defendant to the plaintiff and to the plaintiff’s children at least exceeded the plaintiff’s non-financial contributions to him. This is no criticism of the plaintiff, in that much of her effort over the course of the close personal relationship was directed to the raising of her children, however that relativity in domestic contribution was the result.
Turning to the loans and the plaintiff’s assistance to the defendant concerning his rental properties; overall, the loans by the defendant, and the ultimate forgiving of $97,700 owed by the plaintiff to him, together with the significant interest incurred and forgone by the defendant on that money totalling some $39,854[346] significantly exceeds the value of the 43 days’ time the plaintiff spent assisting the defendant with his rental properties, and generally. That is the case whether you assess the value of that contribution in terms of the value of 43 days labour, or in the percentage contribution the plaintiff made to the overall conservation and improvement of the defendant’s real property, which I find did not exceed 5%.
[346] Exhibit D19.
Accordingly I find that while the plaintiff did contribute to the defendant in non-financial ways within the meaning of section 11 of the Act, and taking into account all the considerations articulated within section 11 including all relevant matters, considering per section 11(1)(b) that the defendant’s contributions to the plaintiff and her family exceeded the contributions made to the defendant by the plaintiff, I find that it is not appropriate to make any order for the division of property as sought by the plaintiff under Part 3 of the Act.
In the words of Young J in Parker v Parker[347] cited with approval by the Full Court in Hogg v Roberts[348] the contributions of the plaintiff have already been sufficiently recognised and compensated for.
[347] Parker v Parker (1993) 16 Fam LR 863.
[348] Hogg v Roberts [2003] SASC 410.
The alternate claim in equity
As I have considered the plaintiffs claim in full, on the merits, it is unnecessary to consider in detail the plaintiff’s alternate claim in equity. If I were to do so I would dismiss the claim on the basis articulated by Debelle J in Parij v Parij (1998) 72 SASR 153 that having regard to the manner in which the parties have conducted their relationship and the contributions both financial and non financial each have made, it is not unconscionable for the defendant to retain the sole beneficial ownership of property he acquired in the course of the relationship.
Conclusion as to whether the parties resolved and settled the action
I accept on the balance of probabilities the defendant’s evidence and version of events as to what occurred after the parties ceased to live together in September 2008. I reject the plaintiff’s evidence to the contrary.
On the basis of that evidence I find that the parties discussed and resolved all outstanding matters from their relationship as summarised earlier in these reasons. I find they intended to resolve without lawyers and did settle all claims between them that might arise out of their relationship on the basis in particular that the defendant would leave certain specified property with the plaintiff and would forgive the plaintiff all outstanding debts she owed him.
Summary of conclusions
1. The plaintiff and the defendant were in a close personal relationship from January 2004 until September 2008.
2. The plaintiff did contribute within the meaning of Section 11 of the Act, however the plaintiff’s claim pursuant to the Domestic Partners Property Act should be dismissed on the merits on the basis that the contributions of the plaintiff have already been sufficiently recognised and compensated for.
3. The parties resolved and settled the claim as between themselves in or around November 2008.
4. An extension of time should not be granted, as the court is not satisfied that an extension is necessary to avoid serious injustice to the applicant.
I will hear counsel as to the appropriate orders in light of these conclusions, and as to costs.