SANDONA v PERRE - [2010] SADC 17

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SANDONA v PERRE
[2010] SADC 17
Judgment of His Honour Judge Barrett
5 February 2010
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - RELATIONSHIP
Plaintiff asserted de facto relationship for 3 years. Defendant said relationship lasted only 2 years 4 months. Consideration of factors determining when the de facto relationship commenced. Held: De facto relationship lasted for 3 years.
De Facto Relationships Act 1996 s 4, referred to.

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - RELEVANT CONSIDERATIONS
Relationship lasted between about November 2003 until Christmas Day 2006. As such the division of property is determined by the De Facto Relationships Act 1996, not the renamed Domestic Partners Property Act 1996 which came into effect on 1 June 2007.
During the relationship the plaintiff moved in to live with the defendant in her house. He sold his own house. He contributed money and labour to the renovation of the defendant's house. After the relationship ended he moved into a unit which he purchased. Order made for division of property by way of order that the defendant pay to the plaintiff a lump sum of ... pursuant to s 10(2)(c) of the De Facto Relationships Act. Consideration of matters for consideration in s 11(1) of the Act.
Karpathiou v Clemente [2008] SASC 316; Hogg v Roberts (2003) 87 SASR 248; BKF v DTTN & Anor [2009] SADC 91, considered.

SUCCESSION - EXECUTORS AND ADMINISTRATORS - RIGHTS, POWERS AND DUTIES - AS TO ACTS DONE BEFORE GRANT OF PROBATE OR LETTERS OF ADMINISTRATION
Plaintiff died during trial - proceedings continued on his behalf by his daughter as his personal representative.
Survival of Causes of Action Act 1940 s 2(1)(a); Supreme and District Court Civil Rules 2006 r 76(2)(a), referred to.

SANDONA v PERRE
[2010] SADC 17

This is a property dispute between two people who lived together for a period but were not married. When they met the plaintiff was 63 and divorced. The defendant was 55 and widowed. They met in about January 2003. They began living together either in about November 2003 (the plaintiff’s version) or August 2004 (the defendant’s version). They separated on Christmas Day 2006. They had grown up children. While they were living together the plaintiff sold his house in Morphett Vale. When they lived together they lived at the defendant’s house in Brooklyn Park. During their relationship renovations were done to the defendant’s house. The dispute between the parties revolves around the financial and labour contributions each made towards the renovations and to a lesser extent, the non-financial contributions made by each during their cohabitation.
Applicable legislation
The parties proceeded on the assumption that the legislation applying to this case is the Domestic Partners Property Act 1996. One reading of s 4(1) of the Act suggests that this Act did apply to domestic partnerships that were a de facto relationship. The section reads as follows:
4—Application of Act
(1)     This Act does not apply to—
(a)    a domestic partnership (other than a domestic partnership that was a de facto relationship) that ended before the    commencement of this     section; or [emphasis added]
(b)    a de facto relationship that ended before 16 December 1996.
However there is authority for the proposition that that is not so. In Karpathiou v Clemente [2008] SASC 316 the Full Court[1]determined that the legislation applicable to a relationship that was said to exist between March 2003 and October 2006 was the De Facto Relationships Act 1996. In that case, as in the present case, the relationship finished before 1 June 2007, the date on which the renamed Domestic Partners Property Act 1996 came into effect.
[1] per Gray J par [3] to [7]
In BKF v DTTN and Ano [2009] SADC 91 His Honour Judge Nicholson applied that same reasoning to a relationship which was said to have existed between November 1997 and April 2004. Therefore, contrary to the assumption of the parties during the trial, I find that the relevant legislation is the De Facto Relationships Act 1996. In any event the provisions of the two Acts are, in relevant respects, the same.
The pleadings
Both parties pleaded their cases by reference to the Domestic Partners Act 1996. I will read each by reference to the De Facto Relationships Act 1996. In paragraph 3 of his Statement of Claim the plaintiff asserts that the parties cohabited in the defendant’s house from early December 2003 until 25 December 2006. In paragraph 5 he pleaded that while cohabiting, the parties were in a bona fide domestic relationship. In the event the plaintiff’s case really is that the parties were cohabiting from a time prior to his daughter’s visit to Adelaide in November 2003, until Christmas 2006.
The defendant in paragraph 2(a) of her Defence denies that there was a domestic partnership within the meaning of the Domestic Partners Property Accused t. I take that to mean a denial to there being a de facto relationship within the De Facto Relationships Act 1996. However in paragraph 2(b) the defendant concedes that the parties resided together on a genuine domestic basis for a period of less than 3 years from approximately August 2004 until approximately 25 December 2006. In my view that pleading, and the evidence by the defendant, effectively concedes that there was a de facto relationship between the parties for less than 3 years. In other words the relationship is admitted but the duration is not. A de facto relationship is defined in s 3 of the De Facto Relationships Act 1996 as:
a relationship between a man and a woman, who, although not married to each other, lived together on a genuine domestic basis as husband and wife.
If the parties’ cohabitation began in November 2003, as the plaintiff contends, then the property dispute is to be determined by reference to the De Facto Relationships Act 1996[2]. If it began in August 2004, as the defendant contends, then the dispute about property is determined by common law principles relating to constructive trusts.
[2] s 9(2)(c)
The trial
The trial began on 3 March 2009. The plaintiff and his daughter gave evidence and, apart from a reopening of the plaintiff’s case at a later stage, the plaintiff’s case concluded on 4 March. The defendant’s case began on 4 March but had to be adjourned on 5 March when the plaintiff became ill and was taken from the court by ambulance. The defendant was giving her evidence when the trial was adjourned.
By the time the trial resumed on 15 May, the plaintiff had died. The action was continued by the plaintiff’s personal representative, his daughter Linda Marie Carr, pursuant to Rule 76(3)(a) of the Supreme and District Court Civil Rules. There is no dispute about the action continuing in that fashion. The cause survives pursuant to s 2(1)(a) of the Survival of Causes of Action Act 1940
The issues
Did the relationship between the plaintiff and the defendant begin before Christmas in 2003?
Is the dispute to be determined by reference to the provisions of the De Facto Relationships Act 1996 or the Common Law?
What is the extent of the property adjustment to be made between the parties?
Background
The parties were born in different parts of Italy. They migrated separately to Australia in 1956. The plaintiff was then 17, being born on 27 March 1939. The defendant was 9, being born on 29 June 1947.
The plaintiff was married twice. By his first marriage he had a son who is now in his late 40s and a daughter, Linda Marie Carr who is now in her mid 40s. His daughter was a witness at the trial. At the time when he met the defendant the plaintiff was estranged from both his children. There were no children of his second marriage although his second wife had five children from a previous marriage. Both marriages ended in divorce. When the parties met in about January 2003, the plaintiff lived at Morphett Vale. His house was freehold.
The defendant and her husband had three children who are now in their 30s. The defendant’s husband died in January 2000. At the time of her husband’s death the defendant lived at Lucas Street, Richmond. In 2001 she sold that house and bought her eldest daughter’s house at 11 Byrnes Street, Brooklyn Park. There was no evidence about how much she paid her daughter for the house. That is where she was living when the parties met. It is agreed that, before the parties met, the defendant had undertaken some renovations to the house, principally in the kitchen. This is the house whose later renovations are the principal factual dispute in the case.
During their relationship further renovations were made to the house at Brooklyn Park with each party contributing money and labour. In March 2005, some 18 months before the relationship broke down, the plaintiff sold his house at Morphett Vale. He spent some of the proceeds of sale of the house on depreciating assets such as a car and caravan which he retained after the parties separated on Christmas Day 2006. The plaintiff lived in his caravan at the defendant’s property until about March 2007 when he moved to a unit he had purchased. He has a mortgage on the unit.
At the end of the trial there do seem to be some factual matters which are either no longer in dispute or are now clearly demonstrated. They appear to be as follows:
·Between December 2002 and January 2003 - The parties met.
·Between February and April 2003 - The parties began a sexual relationship.
·Between June and August 2003 - The defendant went to Italy on her own having broken off the relationship with the plaintiff. The parties reconciled shortly after her return.
·17 September to 7 November 2003 - The plaintiff received chemotherapy for cancer.
·17 November 2003 - Ms Linda Carr visited her father in Adelaide for 4 or 5 days.
·May 2004 - The parties made a joint trip to Italy. Ms Carr joined them for part of the time. The plaintiff was taken to hospital in Italy. The parties were overseas for approximately 9 weeks. Ms Carr returned before they did.
·12 February 2005 - The plaintiff was admitted to hospital when his stomach swelled.
·March 2005 - The plaintiff sold his house for $173,911. $50,000 was deposited into an account in the name of the defendant only.
·31 May to 5 June 2006 - The plaintiff was admitted to hospital for pulmonary fibrosis.
·17 November 2006 - The plaintiff purchased a Kluger motor vehicle.
·20 December 2006 - The plaintiff went to hospital for eye surgery.
·Christmas Day 2006 – The parties argued. The plaintiff moved into his caravan on the defendant’s property. The parties lived separately thereafter.
·January 2007 - The defendant repaid the plaintiff $50,000 plus interest. This is the sum that had earlier been put into an account in the defendant’s sole name by the plaintiff.
·March 2007 - The plaintiff’s caravan was removed from defendant’s property. The plaintiff has retained his Kluger motor vehicle and his caravan.
Aspects of the relationship
The couple had begun a sexual relationship in about March 2003. The plaintiff had been separated for about 7 years and the defendant had been widowed for about 2 years. By the time a sexual relationship had begun they had been socialising for about 2 months. Both parties agreed that they went out socialising together, in particular, dancing. It is not clear to what extent the defendant had introduced the plaintiff to her family including her adult children. The plaintiff was estranged from his children early in the relationship. In fact it was the defendant who helped the plaintiff re-establish his relationship with his children, or at least with his daughter. The plaintiff fell ill with cancer and received chemotherapy from September to 7 November 2003[3]. The defendant thought it important for the plaintiff to restore his relationship with his children in the light of his illness. I find that the defendant was the initiator of that reconciliation. Sometime in the first half of 2003 the defendant broke off the relationship. She had found the plaintiff too domineering. He had, according to her, been too possessive, wanting her to be with him all the time and resenting time she spent working or time spent with her family. She had told the plaintiff these things before she went alone for a trip to Italy sometime in June 2003. She returned on about 13 August 2003. On her return the plaintiff turned up at her house with flowers and they made up. The relationship resumed. He then fell ill with cancer in September. The defendant cared for the plaintiff while he underwent chemotherapy between September and November 2003. The parties are not in agreement about who stayed where at night during the plaintiff’s chemotherapy. What is not in dispute however is that the plaintiff was ill and either unable to look after himself or limited in his ability to do so while he was receiving chemotherapy and while he was recovering from it. As well as the chemotherapy and its sequelae in 2003, the plaintiff suffered some illness requiring hospitalisation or outpatient treatment in February 2004, February 2005, May/June 2006 and December 2006. On each occasion the defendant looked after the plaintiff.
[3] see Exhibit P1
Significant evidence about the nature of the relationship was given by the plaintiff’s daughter, Ms Carr. I bear in mind that she might have a motive for giving evidence supporting that of her father who says that the relationship was in place in late 2003. Despite having a motive to support her father in his evidence I find that Ms Carr was a reliable witness. She did have difficulties remembering exactly how she came by the belief that the parties were living together when she visited them in November 2003. At one stage she thought her father had not told her in November that the parties were living together and at another stage of her evidence she said that he had said that. When she was asked in cross-examination whether she thought that the parties had been spending time at both houses before the joint trip to Italy in May 2004, she said she did not know.
Despite the uncertainty of that evidence, it and other evidence by the witness suggests to me that Ms Carr was doing her best to tell the truth whatever may be the consequences for her father. She gave evidence of particular observations made during her visit in November 2003. She formed the belief that the parties were living together. Her belief is not relevant for my purposes but her observations are. She gave specific evidence of noticing the following:
1.She noticed that there were in the defendant’s house tapes of music that the plaintiff had made for the defendant. She saw some of his possessions in the defendant’s bedroom – there was a jacket, a camera and a bag. I accept that this is slight evidence of cohabitation.
2.She went with the plaintiff and defendant when the plaintiff saw the doctor. Her father referred to the defendant as his partner at the surgery. She particularly remembered this because she disliked the expression. The plaintiff and the defendant went in together to see the doctor. She remained outside. This is rather stronger evidence of cohabitation, although consistent with a close relationship without cohabitation.
3.The plaintiff gave her an address card he had made. It said, “Albina – Max” and gave their address as “11 Byrnes Street, Brooklyn Park”, the defendant’s house (Exhibit P23). That evidence is of some significance suggesting cohabitation. The defendant said she was aware of the production by the plaintiff of the cards but she said it was just his hobby.
4.During the stay each of the parties spoke affectionately towards each other and about each other. They went shopping with the witness to Harbour Town and appeared to be shopping together. Their behaviour was consistent with their being a couple. I appreciate people can regard themselves as being a couple without actually cohabiting.
5.After Ms Carr returned to Queensland, but before the trip to Italy in May 2004, she rang her father and would almost always either get the defendant on the phone first, or find that her father was with the defendant. The defendant disputes the frequency of the calls Ms Carr made and she disputes that Ms Carr often got her on the phone first. I found Ms Carr’s evidence compelling in this respect and I prefer it to that of the defendant.
6.During the trip to Italy in May 2004 the plaintiff and the defendant slept together and they visited the families of each of them. During the trip the defendant spoke to Ms Carr about her wish to reconcile the plaintiff to his own family in Australia. Again, a close relationship does not necessarily include cohabitiation.
These are the particular observations of the witness suggesting that the parties were cohabiting before their return from the joint trip to Italy in mid 2004.
An incident of a domestic relationship is the sharing of property. The plaintiff did not sell his house until March 2005, some 7 months after the defendant acknowledges that the parties were in a genuine domestic relationship. Some of the proceeds of sale of the house were shared between the parties but the evidence of sharing before that time is less clear. Neither party is very helpful on this topic. With the exception of a lounge and washing machine it does not appear that the plaintiff brought much of his own furniture to the defendant’s house. It is agreed that they jointly purchased furniture but it is not clear when that happened, or what they purchased.
In cross-examination it was put to the plaintiff that none of his furniture was moved to the defendant’s house until after the trip to Italy. He could not remember.
The plaintiff says that he lived with the defendant for 3 months without paying anything, but then he started paying. He did not say when that was.
As between the parties I conclude that the defendant was better able to recall events than the plaintiff. While not infallible, she was better able than the plaintiff to correctly remember the chronology of events.
A particular event about which the defendant ultimately conceded she was mistaken was the visit of Ms Carr to Adelaide in November 2003. She did not think that that visit occurred in November 2003 and she was fairly adamant that Ms Carr had stayed with her father during the visit. Other evidence (in particular Exhibit P22 a bank card statement showing shopping transactions in Adelaide in November 2003), confirms that Ms Carr did visit in November 2003 and it is reasonably clear that she did not stay with her father. I accept Ms Carr’s evidence that her reconciliation with her father was so recent that she was not comfortable staying with him at that stage.
While it is not evidence of shared finances, the defendant took the plaintiff’s advice and withdrew money from one account and put it into a term deposit recommended by the plaintiff. This was in December 2003.
Although there was some overlapping of financial contributions of each of the parties to the cost of the trip to Italy in 2004, it could by no means be suggested that the costs came from a common pool. Until the sale of the plaintiff’s house in March 2005 there is no documentary evidence of pooling money before that time. After the sale of the house there was for the first time a joint account.

It is however agreed between the parties that they pooled money to pay for the renovations to the defendant’s house possibly starting in 2004. What is less clear is exactly when the renovations started and who contributed what. I will have to deal with that evidence when considering the question of property adjustment. For the purposes of determining the nature of the relationship in the first half of 2004, I cannot get any assistance from the evidence of either party regarding finances before the trip to Italy. The most that can be said is that neither party complains about the other being possessive about his or her own money. Neither says that the other was concerned at any point to keep the parties’ money separate nor to keep their expenses separate. Each seems to have put an agreed amount of cash into a tin and expenses for them both came from that tin. The defendant did say that she kept cash hidden in other parts of the house and that the plaintiff did not have cash. The plaintiff said he did have cash. I think it likely the plaintiff did keep cash separate from his bank accounts before he sold his house but I cannot determine how much.
It is agreed that the plaintiff contributed money and his own labour to the renovation to the defendant’s house. The evidence is unclear about precisely when the renovations were undertaken. Much of the labour and materials was paid for in cash by both parties. There were no receipts tendered in evidence before the plaintiff’s house was sold in March 2005. It seems however to be common ground that some renovations were carried out in 2004. The plaintiff’s evidence about when renovations began casts no light on the nature of the relationship in the first half of 2004. The defendant’s evidence is no more helpful. The plaintiff was recovering from chemotherapy in November and December 2003 and was in hospital again in February 2004. I cannot conclude that he did any substantial work or spent any substantial money on renovations before the parties went to Italy in May. In other words I cannot conclude that there was joint contribution to renovations in the disputed period between the end of 2003 and the Italian trip in the middle of 2004.
The defendant denies the couple lived together from late 2003. She said that while she cared for the plaintiff between September and November they were not living together. She says that only during the trip to Italy in May to August 2004 did they discuss living together. She said that it was not until August 2004 that the plaintiff complained of travelling between the two houses and he canvassed the idea of selling his house. It is common ground that they went together to get financial advice about the options that the plaintiff had for his house. She conceded that they were living together when the plaintiff was talking about selling his house. No one could remember when the house was put on the market. It apparently took some months to sell. It was not sold or settled on until March 2005.
I return to the evidence of Ms Carr and in particular to the defendant’s response to her evidence. The defendant doubted that Ms Carr came to visit her father in November 2003. Her counsel never put to Ms Carr in cross-examination that she was mistaken about visiting Adelaide and reconciling with her father in November 2003. As I have said, later evidence clearly demonstrates that Ms Carr was in Adelaide in November 2003. It was not put to me in addresses that I should not accept Ms Carr’s evidence on that topic. In her evidence the defendant went into some detail to support her contention that during her visit to Adelaide Ms Carr stayed with her father in his house. She explained that the plaintiff complained to her that during her stay with him, his daughter did not help look after him and that she left his house in a mess and spent more time with her friends than with him. She concluded that explanation by saying that the plaintiff was definitely not living with her at the time of his daughter’s visit. I am quite satisfied that Ms Carr did visit her father in November 2003. The fact that the defendant doubted the accuracy of Ms Carr’s evidence on the timing of the visit sits uneasily with her otherwise quite good memory of important matters of chronology.
The plaintiff bears the onus of proving on the balance of probabilities that there was a de facto relationship. If his claim relied only on his evidence I would not be able to be satisfied that the relationship existed from late 2003. His evidence lacked the detail that would be sufficient to be so satisfied. The defendant’s evidence that the relationship did not begin until August 2004 was as plausible as his account. The evidence of Ms Carr however persuades me that the parties were living together by the time of her visit in November 2003. I found her evidence reliable and telling. Not all of it pointed conclusively to the existence of the relationship. I place little weight on her observations of some of the plaintiff’s possessions being in the defendant’s bedroom. The presence of the music tapes added nothing to that evidence. Taken singly her observations are not sufficient to prove the relationship. Taken together however I find that several of her observations are compelling evidence of the de facto relationship. They were as follows:
1.The undisputed reference by the plaintiff to the defendant as his partner when they went to the doctors.
2.The address card.
3.The appearance of a domestic relationship.
4.The subsequent telephone calls indicating the parties were together.
5.The appearance of a domestic relationship when the parties visited their respective families in Italy.
In these circumstances I find proved that there was a de facto relationship extending over three years from at least November 2003 to Christmas Day 2006.
I turn to the question of the dispute about property.
Legal principles
It is common ground between the parties that there should be an order for the division of property between the parties. That will be pursuant to s 10 of the De Facto Relationships Act 1996. In the circumstances of this case it is plain that the order must take the form contemplated by s 10(2)(c) of the Act, namely that there should be “the payment by one de facto partner of a lump sum to the other”. The plaintiff has expended money and effort on the renovation of the defendant’s house which she retains. The plaintiff has received no recompense for these expenditures. That must mean that there must be a payment by the defendant of a lump sum to the plaintiff. The power to make such an order derives from s 10(1) which reads:
10—Power to make orders for division of property
(1)On an application for the division of property, the court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.
In Hogg v Roberts (2003) 87 SASR 248 the Full Court determined how that subsection should be interpreted. His Honour the Chief Justice (with whom Perry and Gray JJ agreed) said at par [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.
While s 11(1)(d) enabled the court to have regard to “other relevant matters” His Honour held[4] that that expression was not so broad in its meaning as to mean that the court might have regard to such matters as it thought fit. The Chief Justice also noted 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 be on a just and equitable distribution of property, after considering primarily contributions of the kind identified by s 11(1) of the Act.
[4] par [12]
Further His Honour said at par [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.
In par [15] His Honour regarded as relevant contributions as home maker.
Section 11(1) of the Act reads:
11—Matters for consideration by the court
(1)In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court—
(a)     must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to—
(i)the acquisition, conservation or improvement of property of either or both partners; or
(ii)    the financial resources of either or both partners; and
(b)     must consider the contributions (including homemaking or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them; and
(c)     must have regard to the terms of any relevant cohabitation agreement; and
(d)    may have regard to other relevant matters.
While recognising that other approaches may be called for in a particular case His Honour commended as helpful the approach taken by Young J in Parker v Park (1993) 16 FamLR 863. In that case the trial judge suggested a four-stage approach. The four stages 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 to 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.
In the case of Karpathiou v Clemente [2008] SASC 316 at par [29]-[31] a differently constituted Full Court applied the principles referred to by Doyle CJ in Hogg v Roberts.
Application of legal principles
I will adopt the approach commended by the Full Court in Hogg v Roberts. I will begin by identifying and valuing as best I can the assets of the parties. In my view the only relevant asset for the purpose of the division of property is the defendant’s house. The parties had approximately the same sums in savings at the beginning of the relationship. Each had a Commonwealth Pensioner’s Security Account. In November 2003 the plaintiff had just under $3,000 (Exhibit P3) and in December 2003 the defendant had just over $3,000 (Exhibit D19).
Each had a term deposit. The plaintiff had $10,000 invested (Exhibit P4) and the defendant had $15,000 (Exhibit D11). At the end of their relationship each had just under $4,000 in their Commonwealth Pensioner Security Accounts. It is not clear what had become of the term deposits held by each of the parties.
The plaintiff must have had available to him about $100,000 to purchase his unit. He said it cost approximately $150,000 and at the time of the hearing the mortgage was just over $50,000. He had available to him a substantial proportion of the proceeds of sale of this house. Some, though not all, of the proceeds of the sale of the house can be traced. It appears that $80,000 of the proceeds of sale of the house was deposited into a Colonial First State First Choice account (Exhibit D9 page 4). This is account number 070009552961 in joint names. Withdrawals were made from that account but it is not clear what was done with those withdrawals. A final withdrawal of $33,868.68 (Exhibit D12) was made from that account on 6 February 2007. While that account was a joint account but there is no suggestion that the defendant withdrew monies from that account. I conclude that the sum withdrawn on 6 February 2007 was withdrawn by the plaintiff for his own use. It would have been available to him to purchase his unit. There is a further identifiable sum of just over $50,000 which was available to the plaintiff to buy his unit. From the sale of his house he had paid $50,000 into an account in the defendant’s name solely. After the separation the defendant repaid him the principal of $50,000 and interest of $6,885 in January 2007 (Exhibit D19 statement 24 page 2 of 3). Those three sums add up to just over $90,000. It is not clear where the balance of the monies needed to pay for the unit came from but it may be that the plaintiff used the term deposit he had at the beginning of the relationship. The evidence on that topic is not at all clear. It may be that some of the withdrawals which reduced the joint account from $80,000 to $33,000 were used for that purpose. I assume, but it is not demonstrated in the evidence, that the money with which the plaintiff paid for his Kluger motor vehicle in November 2006 came from that account. He paid approximately $40,000 for that car after trading-in an older car. He also traded-in a caravan during the time the parties lived together. He purchased the caravan for about $25,000 but traded-in his old one for about $4,000 leaving a balance to be paid of $21,000. He took with him the car and caravan when the relationship finished. For these reasons I regard the only relevant asset for consideration as the defendant’s house. I defer the question of the value of the house until after the examination of the questions first of financial contributions made by each of the parties to the renovation of the house and second the amount of labour each, although more particularly the plaintiff, made towards the renovations.
Pleadings and evidence regarding expenditure on renovations
The evidence of both parties was not very helpful in determining who paid what for renovations. There are some helpful bank records. I accept that the parties were genuinely unable to reliably identify the purposes of individual withdrawals made from bank accounts. It has not been possible to clearly determine what became of all of the proceeds of the sale of the plaintiff’s house in March 2005. Labour and materials for the renovations were paid for in cash for much of the time. The parties are substantially apart on their estimates of what each contributed.
In paragraph 15 of the plaintiff’s Statement of Claim he sets out 46 items of expenditure by him on the renovations. Where labour is explicitly mentioned he does not, for the most part, say whether the expenditure is his estimate of the cost of his own labour or whether it is the payment for hired labour (see eg sub paragraphs 5, 9, 10, 17, 40 and 41). When the plaintiff came to give evidence of the individual expenses it became clear that his recollection was imperfect and his evidence imprecise. Likewise when he was taken through his bank statements and was asked to explain individual withdrawals. The amounts claimed in paragraph 15 of his Statement of Claim total $39,972.50. The last item is “other sundry expenses amounts unknown”.
The plaintiff was taken through the receipts comprising Exhibit P6. Again his evidence was imprecise. The observations I have made about the imprecision of the plaintiff’s evidence about his pleaded claims, his bank statements and the receipts do not mean that it is not possible to conclude that he did not pay for some items or that some bank withdrawals were not for renovations. However, in general, the observations do mean that it is impossible to be sure that all of the individual amounts claimed are reliable.
The plaintiff said at one stage that the renovations cost about $89,000. It is quite unclear how he arrived at that figure (see attempted explanation T59-161). No evidence suggests that that much money was spent. The plaintiff’s own pleadings suggest it was more like $39,000.
The defendant says that the renovations cost about $21,000. She says each contributed about half. That is what she pleaded in her Defence at paragraph 9. It is also generally what she said in her evidence. In paragraph 9 of her Defence she responds to the plaintiff’s paragraph 15. The total of the expenses she concedes is $21,463. While her evidence on those expenditures tended to be more precise and to contain more detail than the evidence of the plaintiff, it became clear that she too had no reliable recollection of many items. She said she came to that figure by adding up what she could remember. She said each party contributed equally. She said the plaintiff was entitled to no more than half that figure.
There was an attempt by each party to justify specific expenditures claimed in the pleadings but in each case it became clear that neither was completely reliable. Inevitably, given the passage of time and the lack of records, each was unable to give reliable evidence. I illustrate what I have described as unreliable evidence by reciting what each party said in cross-examination about the largest claim for renovations. In paragraph 15.10 of the his Statement of Claim the plaintiff claimed the following:
Foundation, flooring and labour costs for spare room - $10,600.
That claim was hotly contested by the defendant. The plaintiff was cross-examined about that expenditure. The most relevant part of the cross-examination was as follows:
QHow have you arrived at that figure.
ALike as I just explained.
QIs it from your memory or documents you’ve got.
ANo as I said to you before the document all been gone.
Q4.10 of your documents you say the foundation flooring and labour costs for the spare room which are 10,600.
AAll up was 13,000.
QWhy does it say 10,600.
AWho put the 10,600.
QThis is your document, your pleadings. This is what you say. Is that not right.
ANo you just get me confused.
QI don’t mean to confuse you. What don’t you understand.
AThe man worked there for two days and charged $500 each person, right. I got all ready for the digging and I put the reinforce in it on the foundation and they come and they done the floor and put the mesh in it, the plastic and the concrete in total was around about 13,000. The one out the front was 2,900 but I paid 2,700 or 600 they gave me a bit of discount. (T149)
In paragraph 9(j) the defendant asserted the following in respect of that same item of expenditure:
Foundation, flooring for spare room ($2,530) and cement at front including labour at a cost of $3,470.
This is the most relevant cross-examination of the defendant on that topic:
QYou say in J of your document, 9J, that the costs of the foundation were $2,530 and then some cement $3,470. You see from looking at my client’s document that he says that the foundations were $10,600.
AYes, that’s right, on p.8 he says that. $10,600.
QYou maintain that that’s exaggerated.
AYes, definitely it’s exaggerated, for one room $10,600 just for foundations.
QYou didn’t actually engage the foundation person that did it, did you.
AI was there, I know what was paid, what, you, I know what work was done and I’m sure if his Honour would come and have a look he could see himself what was done there, it wouldn’t possibly be $10,600 to enclose the veranda for foundations. You can build a three bedroom home for 80 to 90,000 on your land. Now where did it figure come from of $10,000 for one room, to hold one wall up.
QJust go down to M in your document, you see there that you’re talking about 800 bricks which were given to the plaintiff at no cost.
AThat’s right.
QSo you think, do you, that it’s unfair for him to claim that as a contribution.
ANo, I don’t think it’s unfair for him to claim for a contribution but I think it’s unfair that what I did for him, I looked after him while he was sick, I think that compensated for what I was doing for him. What he did for me I appreciated what he did for me, but I did for him 10,000 – 10 times more than what he did for me because he, in his own words, he went around saying to people that if it wasn’t for me he would have died long time ago. For 1200 I don’t think he spent $10,000 on a foundation. I know nothing about building but I’m pretty sure you don’t spend $10,00 for a foundation to hold up 1200 bricks.
QSo you don’t know that.
AMy son-in-law is in the building trade and I know for sure that that wouldn’t cost that much for a foundation (T295-296).
Contribution of labour

Each party in my view maximised his or her own contribution and minimised that of the other. Each was inclined, in my view, to exaggerate. The plaintiff said that the defendant gave him almost no help in the renovation work. While I can accept that where outside labour was not engaged the plaintiff did most of the work involving handyman skills and heavy lifting, but I do not accept that the defendant did as little as the plaintiff claims.
The defendant was also given to exaggeration. She claimed to have done “ten times more for the plaintiff” than he did for her. She said he started work but was forced by physical exhaustion to stop. While I can accept that his illness did cause him to take rests it is plain that much work was actually completed.
The plaintiff acknowledged that the defendant cared for him when he was ill. That is plainly true but the defendant’s suggestions of tenfold greater contribution by her is in my view pure exaggeration.
I must consider what, if any, allowance I should make for the labour the plaintiff devoted to the renovations. I am sure that he was keen to do whatever he could. I think that the defendant understated the work he put in. She said that he would start working but would soon have to stop and rest. I conclude that if he did stop, he started again as soon as he was able and that he managed to contribute significant labour towards the renovations. In addition to the renovations I find the plaintiff did outdoor maintenance and gardening. The contribution has to be considered alongside the contribution made by the defendant as homemaker throughout the time the parties cohabited. In addition regard must be had to her input as carer of the plaintiff when he was ill. I find that the defendant did most of the housework and that she cared for the plaintiff when he was ill. He was receiving chemotherapy from September to November 2003 (before the parties cohabited) and there were times when he was ill while they were living together. Trying to fairly weigh up the physical labour of the plaintiff on the one hand and the housekeeping and caring inputs by the defendant on the other seems to me an impossible task, at least on the evidence before me. I am simply unable to quantify each. I am unable to say that one is greater than the other. More pertinently for the purposes of determining a labour component in the division of property I an unable to identify a labour component for which the plaintiff should be recompensed. While the defendant retains the benefit of her own labour contributions to her renovations, her own labour has to be recognised even where it cannot be given a financial weighting.
The renovation work may have started in late 2004 but the more substantial projects were not undertaken until after the plaintiff sold his house in March 2005.
Expenditure by reference to financial records
I turn to the evidence of financial records which I think are a more reliable indication of expenditure on renovation than the evidence of individual items of expenditure.
Both parties said labour and materials were paid for in cash. That may mean that while cash was paid for materials or labour the cash is reflected in withdrawals shown in the bank statements. It may on the other hand mean that cash came from the tin into which each party had paid a lump sum so that that cash is not reflected in the bank statement withdrawals. No-one sought to clarify that point. I think it likely that cash spent on the renovations came from both sources.
I think it is likely that most of the expenditure and renovations was in 2005. The parties were in Italy together between May and August of 2004. With only a couple of exceptions the larger withdrawals for each party do not start until 2005. The plaintiff did not sell his house until March 2005. The larger withdrawals by each party tapered off in 2006. Between January and July of 2006 the plaintiff made only three withdrawals of $500 totalling $1,775. Between the same months the defendant also made only three withdrawals of $500 or more. They totalled $2,100 (she also made a withdrawal of $500 on 7 August). The defendant made withdrawals of $650 and $800 in December 2006, the month in which the parties separated, but I would not readily associate those withdrawals with renovations.
The plaintiff says that most of the larger withdrawals of money from his bank account were put towards the renovations. There is, as his counsel submitted, a pattern of withdrawals from his account for which there is no other explanation. The defendant does not suggest that the plaintiff spent substantial amounts of money on himself. I do not here overlook the substantial sums he paid on upgrading his caravan and on purchasing a car. He took both of those assets with him when he left. He paid about $21,000 for his new caravan. That was after he had received a trade-in for his old one. He paid about $41,000 for the Kluger 4WD in November 2006. Nevertheless when one looks at the bank account of the defendant there is not the same pattern of withdrawals from her account as there is for the plaintiff. I accept that she kept cash of her own about the house and that she used that cash from time to time for renovations. Because I also accept that the plaintiff had cash I think that the pattern of withdrawals from the parties’ day to day accounts is significant. I accept the plaintiff’s evidence that a significant number of the withdrawals of the larger amounts from his account were for renovations to the house.
The plaintiff had a Commonwealth Pensioner Security bank account. The statements from that account form Exhibits P3 and P7. Exhibit P3 is the statements from 9 August 2003 to 8 September 2004. Exhibit P7 is the statements from 9 September 2004 to 28 December 2006.
The defendant also had a Commonwealth Bank Pensioner Security account. D19 is statements from that account from 30 November 2002 to 26 February 2007. Each would withdraw amounts of less than $500. For present purposes I ignore those withdrawals. Only a few larger withdrawals were made by either party before the end of 2004. That would be consistent with the renovations taking place largely in 2005. In addition expenditure around April 2004 to September 2004 might be associated with the trip to Italy. I therefore compare the withdrawals that each made during 2005. On 16 March 2005 the plaintiff deposited into his account the sum of $16,484.33. I think it likely that that sum was part of the proceeds of sale of his house.
A comparison of the withdrawals of each party during 2005 leads to these observations (I ignore withdrawals of less than $500 in each case). During 2005 the plaintiff made eight withdrawals of $1,000. On 6 January 2005 he made a withdrawal of $6,500 and on 24 June a withdrawal of $4,000. There were three withdrawals of $600 and three of $500. Three other larger withdrawals over $500 totalled $2,050. That makes a total of $23,850. During the same time the defendant made seven withdrawals of $800, two of $500 and one of $600. That makes a total of $7,200.
I do not conclude from those withdrawals that the plaintiff paid three times as much as the defendant towards the renovations but I do conclude that he made larger financial contributions than did the defendant.
I must be conscious of any disparity in the patterns of withdrawals of less than $500 as well as those of $500 or more. That must be done to take account of the possibility that the plaintiff made fewer but larger withdrawals for the costs of the renovations whereas the defendant made more but smaller withdrawals. There is a disparity. The defendant’s pattern of withdrawals under $500 is of relatively regular withdrawals of $200-300 particularly in the first half of 2005. The plaintiff’s is a less regular pattern. In 2005the plaintiff withdrew a total of $31,496.65 (Exhibit P7 4/1/05‑28/12/05). During the same period the defendant withdrew $20,307.93 (Exhibit D19, 6/1/05 to 21/12/05. Thus the plaintiff’s gross withdrawals were approximately 50 per cent more than the defendant’s.
Conclusion about expenditure
I think that, as imprecise as they are, the bank statements of the parties are a more reliable guide to the contributions each made to the cost of the renovations than are the receipts and the evidence each party gave about the expenditure. The parties set out to account for their respective spending by reference to the receipts or the particular items pleaded it became clear that each was quite unreliable. That is not to say that, within limits, they were not trying their best to tell the truth. However those limits include significantly faded memories and a tendency by both to exaggerate – to maximise the contribution of the one and minimise the contribution of the other. As I have already indicated the plaintiff says that $90,000 was spent on renovations and he spent most of it. The defendant says about $20,000 was spent and the plaintiff paid only half.
The bank statements are an imprecise indication of the expenditure on renovations. It is not clear what proportion of the withdrawals was spent on renovations and what was spent on other purposes. I think that each contributed cash to the renovations from the cash kept in the house and which did not come from the two principal bank accounts. I find that after he sold his house the plaintiff put at least $12,000 cash into the tin kept in the house. Cash may have come from him from other monies not accounted for. The same may apply to the defendant.
Doing the best I can with the oral evidence and the documentary evidence I conclude that the plaintiff is likely to have spent a large proportion of the larger withdrawals totalling about $24,000 that he made from his Commonwealth account during 2005. I fix that sum at $20,000. In addition I conclude he used a significant proportion of the money he put into the cash tin after he sold his house to pay for renovations. He put in $12,000. Here I must be careful to avoid double counting. The plaintiff said that when he spent cash from the tin he would top it up. His only income was his pension. The pension was paid into his Commonwealth account. He made withdrawals from that account. As I have already mentioned I think that he paid for some renovations directly from the withdrawals from the Commonwealth account and for other renovation work, from the cash tin, which, I accept he topped up by withdrawals from the Commonwealth account. If I were to find a substantial sum from the withdrawals was spent on renovations and then add to that a substantial sum from the $12,000 put into the cash tin, there would be a danger of double counting. I add that there was no evidence about what became of the $12,000 in the tin. I therefore make a more modest cumulative allowance for contributions from the cash tin. I fix the sum of $5,000 from the cash tin.
I therefore find that the plaintiff paid $25,000 of his own money towards the renovations. I do not determine how much the defendant paid towards the renovations. She retains the house. She has the benefit of her own contributions.
Evidence of the value of the defendant’s house
There was a paucity of evidence of real estate value. In paragraph 28 of his Statement of Claim the plaintiff asserts that when the parties commenced cohabitation the defendant’s house was worth approximately $325,000. The plaintiff tendered a valuation dated 3 December 2008 (Exhibit P15) from valuers McLean Gladstone Pty Ltd which was commissioned by the plaintiff’s solicitors. The valuer estimates the value of the house (including renovations) at $410,000 as at 27 November 2008. There are corresponding estimates of the value of the house during the two preceding years. There is an estimated value of $320,000 as at December 2003 and $355,000 at December 2004. The estimates of value in 2003 and 2004 were expressed to be “assuming the house was in a similar condition to now”. Of course the house was not in a similar condition in December 2003. The larger renovations were done during the cohabitation of the parties, that is, after December 2003.
The defendant gave no evidence during her examination in chief about the purchase price of her house. She did however say that she purchased the house from her daughter. No questions were asked about how the mother and daughter arrived at the purchase price. The pleadings dealing with the purchase price are confusing. In paragraph 6(a) of her Defence, the defendant claimed that in August 2004, the time at which she said cohabitation began, the property was “then worth approximately $230,000”. In paragraph 20(a) she said that in August 2004 the house “had a value of $260,000”. The difference between those two figures was not explored by anyone.
In paragraph 20(b) the defendant said the property “has a current value of approximately $280,000”. Her Defence was filed in April 2008. The defendant was cross-examined about the estimate of $280,000[5]. Her evidence on this topic could be at best described as vague: (The cross-examiner erroneously put to the defendant that she had pleaded that the house was worth $280,000 when the relationship began. Her pleadings are set out above.) The evidence was as follows:
[5]    T311 lines 8-10
Q… You say in your pleadings that you think your house was worth about $280,000 at the commencement of the relationship.
AYes.
QAnd that was because no work had been done on it at that stage.
AWell I had already done what I wanted to do to my home. I had already extended by kitchen.
QYou’ll see in the valuation that the valuer is talking about values of the property.
AI’m talking about 280 was when I bought the property, the value. Since then it’s skyrocketed around that area.
QIn fact around every area. You are aware of things are going up.
AYes.
MS MILEN:        I’ve actually marked this, your Honour, so – looking at the original –
HIS HONOUR:     Do you ask the witness be shown the exhibit?
MS MILEN:Yes, I do.
HIS HONOUR:     The valuation is Exhibit D15.
XXN
QLooking at Exhibit D15 produced, when did you say you took the transfer of the home.
AI think it was in two thousand and – no, I can’t remember. I’ve been there now seven years. I think my daughter was pregnant to her second child and that’s when I sold the property. So Francesca would be eight – is eight, so it would be about eight years ago.
Q2001, 2002, you agree with that.
AYes.
QYou say that at the date in your pleadings you say that you think that the property was valued at about 280,000 when you two got together.
AYes.
As already mentioned the plaintiff’s counsel had mistakenly put to the defendant that in her pleadings she had said that she thought the property was valued at about $280,000 when “you two got together”. The defendant agreed. In fact, as just mentioned, she had pleaded two estimates of value as at August 2004 – one of $230,000 and another of $260,000. The matter was not followed up in re-examination. What the defendant did say in re-examination was that before December 2003 renovation work on the kitchen had been started but not completed. Her evidence suggested that some of the renovation work on the kitchen had been done by the defendant but it had been done before they started cohabitation.
The plaintiff called no oral evidence of valuation.
The defendant did not require the plaintiff to call the valuer. She did not challenge the valuation material as such in her evidence. The defendant did not suggest she had done any further renovations to the house between cohabitation ending in December 2006 and the valuation in 2008. I am left then with the valuer’s valuations of the house with all renovations assumed to have been done. I have no estimate of the value of the house without the renovations. The valuer says that the house was worth $320,000 in December 2003 and $410,000 in November 2008. There was no other evidence of property value movements. I am not willing to rely on the defendant’s evidence, such as it was, that the value of property in her area “skyrocketed”. I am not willing to rely on her evidence, such as it was, about the value of the house at the time of cohabitation began. She is not qualified to give such evidence and the evidence she gave was confusing and contradictory.
The only evidence of valuation I am willing to rely on is the unchallenged report of the valuer (Exhibit P15). I accept that evidence. Nevertheless I am left to try to determine to what extent the plaintiff’s financial input contributed to the value of the house.
The valuations show that the value of the house increased by $90,000 or approximately 5.6 per annum between December 2003 and November 2008. I acknowledge that there may not have been a uniform increase over that period. There may have been larger increases than actual decreases. The so called Global Financial Crisis occurred in 2009, but I think I am entitled to take into account that real estate prices have more recently shown signs of recovery.
Effect of financial contribution on value of house
I have received no evidence, expert or otherwise, on the effect the renovations had on the value of the house. I think that the renovations must have been largely completed by December 2005. The Valuer places a value on the house, complete with the renovations, as at December 2004, one year earlier. That valuation is $355,000. The renovations had the effect of enclosing the verandah to form a family room, adding a double carport and gazebo and paving. The defendant submits that to make a finding about the effect of renovations on the value of the house is, in the absence of expert evidence, speculative. While I accept that the exercise is imperfect and imprecise I reject the submission that it is impermissible speculation. I have fixed the amount of the monies spent by the plaintiff on the renovations. I have made no allowance for his labour. Acknowledging the lack of expert evidence I think that it is reasonable to estimate that the defendant’s contribution of $25,000 increased the value of the house by $20,000 when the renovations were completed. The Valuer says that in December 2008, the house with its improvements, was worth $410,000. The $25,000 that the plaintiff spent in 2005 has contributed to the 2008 valuation. I see no reason why the plaintiff should not receive a proportion of the increase in value of the house between the time he spent his money and December 2008. As already indicated the average annual increase in the value of the house between December 2003 and December 2008 is about 5.6 per cent. I have already acknowledged a degree of imprecision about that figure but I do not consider it unreasonable or speculative.
Conclusion
I move to fix the plaintiff’s contribution to the value of the house in December 2008. The reasoning I adopt to determine the lump sum that the defendant must pay to the plaintiff is as follows: By December 2005, the plaintiff’s contribution of $25,000 added $20,000 to the value of the house. The value of the house increased by 5.6 per cent per annum thereafter. If the sum is to be calculated by reference to the date on which the plaintiff filed his summons, 21 December 2007, the $20,000 sum should be increased by 11.2 per cent ($2,240). If it is to be calculated by reference to shortly before the date of judgment, then it would be increased by 28 per cent ($5,600). I will hear the parties on how I should fix the sum.