Martola v Winkler

[2000] QDC 147

DISTRICT COURT OF QUEENSLAND

[2000] QDC 147

PARTIES:	GIANLUIGI ANTHONY MARTOLA (Plaintiff) v. SUSANNE GUDRUN WINKLER (Defendant)
FILE NO/S:	D43 of 2000
DELIVERED ON:	4 May 2000
DELIVERED AT:	Maroochydore
HEARING DATE:	3 April 2000
JUDGE:	K S Dodds DCJ
ORDER:	Declare the parties’ interests in the jointly owned property to be the plaintiff 50 per cent and the defendant 50 per cent.
COUNSEL:	P N Sacre for the plaintiff Defendant conducted her own case
SOLICITORS:	SG Sowden for the plaintiff Defendant conducted her own case

1. The plaintiff’s claim was for:

§  a declaration about the entitlement of the plaintiff and the defendant to real property namely, Lot 2 on RP 215115 County Canning, Parish Maroochydore, situated at 17 Eumundi Road, Eumundi (the property) and in other property and debts

§  an injunction to restrain the defendant from entering or remaining upon or being within 100 metres of the property.

The claim was provoked by the defendant recently indicating she and a child of the parties intended to take up residence in the property. 

1. The parties met in 1983 or 1984 in Victoria and commenced a relationship.  After some period of separation, the defendant came to Queensland in late 1986 or early 1987.  He said he brought with him a motor vehicle, some furniture, a trailer, tools, and some savings.  It seems the motor vehicle was later traded in for a value of $2000 in the purchase of a Ford Falcon for the parties’ use.  The parties commenced to live in a de facto relationship in Queensland in about June 1987.  They finally separated in about January 1994.

1. On 19 April 1988, the parties entered into a contract to jointly purchase the property, then a block of rural residential land for $33000.  The deposit according to the contract was $3300.  Settlement was due on 31 May 1988.  Money was jointly borrowed from Ipswich and West Morton Building Society for the land and to fund a dwelling house.  The plaintiff’s parents provided $7000 and $5000 was contributed probably from money the plaintiff had.

1. In late 1988 or early 1989, the parties separated for a time.  By March 1989, they had been seeing each other again and their child was conceived.  The defendant already had a child from an earlier relationship.  Their child was born on 2 January 1990.  After conception the defendant moved back with the plaintiff and they lived together in a caravan on the property.

1. Throughout 1989, a Nu Steel Kit home was built on the property.  I find it was erected before the child was born.

1. In August 1988, the parties received a lump sum payment under the First Home Owners Scheme then operating.  They also had an entitlement to further instalments.  I find this money was applied to their joint endeavour.

1. In early 1991, the parties applied to the Queensland Housing commission for mortgage relief.  They were granted assistance by way of a loan of $5000.  By December 1993, the amount of $1941 was still outstanding.  Two payments were made in 1994.  By the end of 1994 the outstanding balance was $1906.  No further payments were made until March 1997.  By 30 September 1999 the debt had been reduced to $1226.

1. By contract of sale between the Queensland Housing Commission and the parties as joint tenants, dated 14 March 1991, the Commission pursuant to the then section 24 of the State Housing Act 1945, sold to the parties a 27 per cent share in the property for $22018. The loan amount of this sum was $18497 (the home loan). Legal title by this time must have been vested in the commission.

1. On 19 August 1993 the parties signed a document whereby they evidenced they were purchasing the property as joint tenants.

1. On 23 March 1994, the parties entered into another contract with the Housing Commission in substitution for the previous contract, whereby they were purchasing as joint tenants a 25 per cent share in the property.

1. During 1993 the parties let the house and lived at Boystown where the defendant was employed as a cottage mother.  When the defendant’s contract expired in January 1994 she moved back onto the property and the plaintiff lived elsewhere in rented accommodation (the final separation).  During this period, the defendant made payments to the Housing Commission.  She had some receipts for payments made over the period which evidence payment of a total of $1372. 

1. In January 1995, the defendant left the property and the plaintiff moved in.  She has not resided there since.  It seems that by this time the relationship had completely broken down and there was a lack of civility and objectivity between the parties.  Since then the plaintiff has resided on the property and the defendant has lived elsewhere.

1. The evidence of the plaintiff and the defendant differed in a number of respects, for instance about who made what contribution with respect to the property and who made what payments.  In this regard, I prefer the evidence of the defendant to that of the plaintiff despite the defendant having difficulty remaining detached from her emotional connection to much of the material in the evidence.  Despite this, I consider she was more frank in her evidence.  I also accept her mother’s evidence.  I am satisfied both women told the more truthful account about the plaintiff’s, the defendant’s and her mother’s contributions to the improvement of the property. 

1. At the time the property was first purchased, I find it was the intention of both parties that they would share equally the beneficial interest in the property.  Both intended to live together as if man and wife.  I find the plaintiff did not intend to retain a beneficial interest to the extent of the money he contributed at that time.

1. After purchase, I find the defendant contributed money from her earnings to pay household expenses and including towards repayment of the loan.  I find she assisted to a generally equal degree with the plaintiff during the construction of the house.  She painted it inside and assisted later with the painting of the outside.  She assisted in the improvement of the grounds of the property. She maintained the property while the defendant worked away.  Her mother bought carpet and curtains for her, which were installed in the house.  She also provided money for such things as fencing, gravel, soil, a lounge suite and wallpaper.

1. The plaintiff’s case was that the defendant’s share of the joint interest in the property should be discounted because:

§  The plaintiff provided $12000 towards the original purchase price of the property with the help of money from his parents;

§  The plaintiff provided the defendant with a credit card and she was responsible for $5000 odd debt on it at the time of final separation;

§  The plaintiff paid regular amounts to discharge a debt incurred in the purchase of a Toyota Tarago motor vehicle in joint names.

With regard to this, after final separation the parties still shared the use of this vehicle until about January 1995 when the plaintiff kept the vehicle.  The financier, AGC took possession of it in April 1995 because payments to reduce the debt were not being made.  It was sold for less than the outstanding amount of the debt and the plaintiff has paid money to extinguish the debt.  The plaintiff rightly abandoned this claim.

§  The plaintiff since final separation has been making payments to reduce the outstanding amount of the mortgage relief loan.

§  The plaintiff since final separation has expended money on improving the property.  He has paid rates.

§  The plaintiff since final separation has made payments to reduce the outstanding amount of the home loan.

Funds provided by the plaintiff for the purchase of the property

1. The plaintiff provided about $5000.  The plaintiff’s parents provided $7000.  Other money was jointly borrowed for the purchase.  The plaintiff’s intention at the time was that the defendant would have a beneficial interest in one half of the property.  After the initial purchase the defendant contributed money from her earnings.  Money was provided by her mother which was spent on improvement of the property.  The defendant contributed physically to the improvement and upkeep of the property.

1. I find this is not a case in which each party’s contributions were “made in circumstances in which it was not intended that the other party should enjoy them”: Baumgartner v. Baumgartner (1987) 164 CLR at 148. Rather it is a case where there should be an equal sharing of the beneficial ownership of the property. To that point by and large they had “pooled their resources and efforts to create a joint home”: Baumgartner at 149. When account is given to the defendant’s contribution to the property while the plaintiff worked away and to the assistance of the defendant’s mother including financial assistance which the defendant contributed to the property I am not persuaded justice requires anything other than equality of beneficial ownership of the property to the time of final separation with an adjustment of about $8300 in the plaintiff’s favour to reflect a greater financial contribution from his side of the relationship and his payment of rent between January 1994 and January 1995.

The credit card

1. The credit card was a Commonwealth Bankcard the plaintiff had.  After the parties were living on the property, the defendant became an additional cardholder and used the card.  The plaintiff in his affidavit said that at final separation the debt was approximately $5000 most of which was for purchases made by the defendant.  The defendant in her affidavit in response said that $2500 of the amount of debt was incurred by the plaintiff in purchasing a new ride-on mower which she had opposed and the balance represented expenditure incurred for shared purposes.  The plaintiff has kept the ride-on mower.  I accept the defendant’s evidence about the mower.  It was not challenged.  I accept that since final separation the plaintiff has been making payments to reduce the debt.  At final separation, the defendant’s share of this debt may be regarded as about $1200.

The mortgage relief loan

1. This was obtained to assist with the joint purchase of the property.  During the period the parties were together before final separation, the outstanding amount of this loan had been reduced considerably.   Up until final separation the defendant contributed from her earnings when able to the pool of available funds. By September 1999, the plaintiff had made payments reducing the amount to $1226, about $715 in almost six years, roughly $125 per year or $2.40 per week.  During this period he lived on the property.

Other payments made by the plaintiff on or about the land since final separation

1. The plaintiff moved back into the property in January 1995.  He claimed it was run down and infested with pests.  I do not accept this evidence at least to the extent that its intent is to imply the defendant let the property deteriorate.  There is ample material, which I accept, to establish that residences in which the defendant lived were always well kept, cared for and clean.  I doubt there would be any house which from time to time does not need to have steps taken to spray or otherwise eradicate pests.

1. The type of expenditure set out at paragraph 72 of the plaintiff’s affidavit is typical maintenance expenditure and expenditure on items to enhance the quality of life of inhabitants of a dwelling.  No doubt the plaintiff has enjoyed the benefit of the expenditure.  Likewise work in the garden, including provision of plants.  I am satisfied that before final separation there were gardens on the property which the defendant had contributed to with the plaintiff and also a driveway which the defendant with her mother’s help had created.  The defendant’s mother provided the money for the materials for that driveway.

1. The plaintiff said that in 1999 he had constructed another better driveway.  The defendant does not agree it is better.  She regards it as spoiling the presentation of the property.   Whatever the position be, the point is what if any value it has added to the property.  Likewise fencing the plaintiff said he did in 1999.  I accept the evidence of the defendant’s mother that she paid for fencing in 1989 or 1990.  It was wire mesh fencing.  I note the only fencing mentioned in valuation of the property prepared for the Housing Commission in March 2000 is “miscellaneous wire boundary fencing”. 

1. The valuations I have referred to indicate the property is presently somewhat run down.  One valued it at $114000, the other at $120000.  Given the purpose of the valuations I think they would tend to be conservative.  The valuer’s note the location of the property adjacent to a busy road, as negatively affecting its value.

1. Exhibits to the defendant’s affidavit include a market estimate by a real estate agent operating in the area of the property of $135000 in May 1995.  A letter to the defendant from a salesman from that real estate firm in March 1995 complained of knee high grass on the property, the property looking run down and of the plaintiff not providing a key so that potential purchasers could be shown the property.

1. I am satisfied the defendant was desirous of selling the property in 1994 early 1995.  Correspondence by her then solicitor in November 1994 exhibited to her affidavit deals with an offer to purchase for $150000 with respect to which a subject to finance contract had been entered into.  That sale did not proceed.  Another letter in February 1995, advised of parties interested in purchasing the property for $135000.  The potential purchasers for $150000 at least at the time of entering into the contract, were contemplating finance for the whole purchase price.  The plaintiff said those potential purchasers did not proceed with the contract.  The defendant said they wished to but the plaintiff would not agree to the sale.

1. The correspondence I have referred to leaves an impression that the defendant was desirous of selling at that time but the plaintiff would not join in.  That may be regarded with the letter from the real estate agent to the defendant in March 1995 referred to in paragraph 26 when the plaintiff was in residence in the property.

1. No doubt the defendant could have forced the issue at the time.  Correspondence from her solicitor to her makes reference to the possibility of the appointment of statutory trustees for sale.  I accept the defendant’s evidence she did not carry on with that because a custody dispute regarding the child of the relationship intruded.  It appears to have become a bitter dispute.  The plaintiff was eventually successful in the Family Court on that occasion.  Once that occurred I accept the defendant did not want to do anything which may provoke the plaintiff into leaving the house and perhaps moving back to Victoria where his parents were.  Recently this year a consent order was made in the Family Court that the child live with the defendant and that she have responsibility for his long term care, welfare and development.

The payment of the home loan

1. A statement from the Housing Commission exhibited in the trial shows that from 1 June 1992 until 9 May 1994, the outstanding balance due to the Housing Commission was reduced from $18762 to $14717, an amount of $4045 or approximately $40.00 per week.  Since 1 July 1994 until 28 February 2000, the outstanding balance has been further reduced to $7482.30, an amount of $7235.  That is approximately $25 per week.    The defendant was able to produce receipts for $400 of this.

The defendant’s expenditure since final separation

1. The defendant married in June 1995.  That relationship ended at about the time the defendant lost the custody battle for the child of the relationship with the plaintiff.  That was in about February 1996.

1. I accept that except for a short period during which an attempt at reconciliation was made with her husband, the defendant has lived in rented premises.  She said she paid $150.00 per week over the period.  She produced no documentary confirmation of this except when during cross-examination she recalled she had a rental receipt in her purse and produced it.  Counsel for the plaintiff inspected it but it was not tendered as an exhibit.

1. In accepting her evidence about living in rented premises despite the lack of documentary confirmation I have taken into account that the defendant has been unrepresented and the urgency of the preparation for the trial of the proceedings.  In the end I have acted on my overall impression of both her and her mother as witnesses.  Rental of say $150.00 per week since she finally left the premises to the end of February 2000 would amount to in excess of $38500. 

Conclusion

1. The plaintiff’s repayments of loan money since he entered into sole occupation of the premises until the end of February 2000 amount to about $7500.  He has expended some money on the property.  However for the most part as I have mentioned, it was on maintenance items and items to enhance his quality of living at the property.  It is not shown there was the addition of any significant value to the property. 

1. He has paid the rates on the property which from July 1995 to July 1998 so far as I can follow from the receipts produced totalled something in the order of $4518 or $1506 per annum.  Extrapolating, the total due to date would be in the order of $6777 including one half of the rates for 2000 which I have treated as the plaintiff’s expenditure on the property.

1. Since final separation the plaintiff has made use of the house as his residence. The defendant has for the most part been living in rented premises.  Discounting expenditure on rent by one year at $150.00 per week produces about $30000.  The defendant estimates her expenditure on rent at $27000. 

1. Either party could have, at an earlier time, taken steps to finalise the outstanding property issues between them.  The plaintiff probably did not because he had the house.  I have already touched upon why the defendant did not. 

1. When there is taken into account the adjustment of $8300 referred to earlier, the defendant’s share of the credit card debt, the amounts the plaintiff has expended on loan payments and rates and the defendant’s expenditure on rent it can be seen that the balance of relevant expenditure is tilted to some extent to the defendant.  I understand the parties equity in the property is not particularly large.  Doing the best I can on the evidence before me, I find that the plaintiff is entitled to 50 per cent of the parties equity in the property.  The liability for the local authority rates on the property up until June 2000 is the plaintiff’s.  The liability for loan repayments due up until the date of the judgment is also the plaintiff’s.

1. I declare the parties’ interests in the jointly owned property to be the plaintiff 50 per cent, the defendant 50 per cent.