Simmons v Williams

SIMMONS v WILLIAMS
[2002] SADC 168
His Honour Judge Robertson
Civil
Nature of the Proceedings

The Plaintiff and the Defendant seek a division of property pursuant to Section 10 of the De Facto Relationships Act 1996 (sometimes called “the Act”). The Plaintiff in his claim, seeks an equal division of the property the subject of the proceedings. By the end of the hearing, the Defendant in her counterclaim, sought a division of the property the subject of the proceedings, on the basis that the Plaintiff receive twentyfive percent to thirty percent thereof and that she receive the remainder. I have used the expression “the property the subject of the proceedings” deliberately. Both parties have agreed that they only seek a division of property with respect to a house at Wattle Street, Malvern and a fund of approximately $67,000, being the net proceeds of the sale of another house at Williamstown in Victoria. It is agreed by the parties that property currently in possession of either party, other than the property the subject of the proceedings, will remain the property of that party.
The Relevant Provisions of the De Facto Relationships Act.
I mentioned that the claim and the counterclaim of the Plaintiff and the Defendant respectively have been brought pursuant to Section 10 of the Act. Section 10 (1) of the Act provides:-
“10. (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.”
Section 11(1) of the Act sets out matters for consideration by a court when determining whether to make an order pursuant to Section 10 of the Act. Section 11(1) of the Act provides:-
“11.(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.”.
There is an obligation upon a Court to consider the contributions described in Section 11(1)(a) and (b). By contrast, Section 11(1)(d) provides for a Court to take into account such other matters which the court considers to be relevant. It is a discretionary provision, which by its very language indicates that its application is of wide import. (see: Germinario v Pinkerton (2000) 209 LSJS 419). In my view its application is not confined to matters of a financial nature.
The structure of both Sections 10 and 11 are such that after a Court has completed its task under Section 11 of the Act it is then necessary to undertake the further exercise provided by Section 10 of dividing the property “… in a way that is just and equitable”. The observations of Mason J and Deane J in Norbis v Norbis (1986) 161 CLR 513 at 523 are apposite (although they were referring to the Family Law Act):
“The assessment of the parties’ entitlements before the making of an order is another question quite distinct from the assessment of their contributions”.
Whilst the discretion contained in Section 10 is unfettered, it must be exercised by a Court within the confines of the scope and purpose of the legislation (O’Sullivan v Parker(1989-90) 168 CLR 210 at 216).Expressed another way, this discretionary power does not permit a court “… to engage in an unbounded exercise in distributive justice.”, to borrow an expression from the judgment of Gleeson CJ and McLelland CJ in equity, in Evans v Marmont (1997) 42 NSWLR 70 at 79.
Use of Authorities from other jurisdictions.
Before I proceed any further I wish to say something regarding the use of decisions of Courts in other jurisdictions. There is De Facto Relationship legislation in many other States and Territories of Australia. Some of the legislation has provisions which are expressed in similar terms to that contained in Section 11(1)(a) and (b) of the Act. For example, there are similarities between Section 20(1)(a) and (b) of the New South Wales Property Relations Act 1984 and the two South Australian subsections. There are also significant differences when the South Australian legislation is compared with the New South Wales Act. One striking difference is the absence of a provision similar to Section 11(1)(d) of the Act. Whilst bearing in mind there are differences between the two Acts, decisions in relation to the New South Wales Act may offer some assistance where the problem being considered is generally common to both Acts. The same comment applies to the decisions in other jurisdictions with De Facto Relationship legislation. I should also add that whilst there are differences between the Family Law Act (Cwth) and the De Facto Relationships Act, some assistance may also be gained from the decisions under the Family Law Act concerning problems which are generally common to both Acts. (Black v Black (1991) 15 Fam LR 109 at 113).
Jurisdictional Factors.
Section 9(2) of the Act sets out the conditions which are required to be met before an application for division of property may be made. The subsection provides:-
“9. (2) However, an application for the division of property may only be made if –
(a)the applicant or respondent is resident in the State when the application is made; and
(b)the de facto partners were resident in the State for the whole or a substantial part of the period of the relationship; and
(c)the de facto relationship existed for at least three years or there is a child of the de facto partners.”
The expression “de facto relationship” is defined in Section 3 of the Act:-
“means the relationship between a man and a woman although not legally married to each other, live together on a genuine domestic basis as husband and wife;”
It was not in dispute in these proceedings that there had been a de facto relationship between the Plaintiff and the Defendant and that the relationship had ended. It was accepted that the de facto relationship had commenced about 7 December 1993. There was a dispute between the parties regarding when the relationship ended. The Plaintiff said that the relationship ended on 23 January 2000 whereas the Defendant said that it ended on 7 January 2000. Nothing really turns on this issue. In cross-examination the Plaintiff accepted that the Defendant told him that the relationship was over in early January. It was the Defendant’s evidence that she advised him that the relationship was over on 7 January 2000. I am prepared to accept that the relationship ended on 7 January 2000. The parties did not cohabit after that date. It is clear that the de facto relationship existed for at least three years.
The application for division of property was brought by the Plaintiff on 4 January 2001. At that time he lived in Victoria. However, the Defendant was residing in South Australia at the time and has continued to reside in South Australia.
The de facto relationship was formed, when both parties were living in Victoria. About the middle of 1998, the Defendant obtained employment in Adelaide. The parties agreed to relocate to Adelaide. The Defendant returned to South Australia in August 1998. The Plaintiff followed shortly thereafter. The relationship continued in Adelaide until January 2000.
It was agreed by both parties for the purposes of Section 9(2)(b) that both partners were resident in South Australia for a substantial part of the period of the relationship. However, jurisdiction is a matter for the Court. It is therefore necessary to consider if both parties were resident in South Australia for a substantial part of the period of the relationship. One meaning of the word “substantial” supplied by the Oxford English Dictionary is “of ample or considerable amount, quantity or dimension”. Adopting this meaning, in my opinion, the period the Plaintiff and the Defendant resided in South Australia was “… a substantial part of the period of the relationship”.
I find that the Plaintiff’s application for the division of property meets the qualifications set out in sub-section (2) of Section 9.
I mentioned earlier that the Defendant in her counterclaim is seeking division of property. I think it was unnecessary for the Defendant to bring a further application for division of property by counterclaim. It seems to me that once proceedings are instituted by one of the parties to a de facto relationship then the Court is required to consider the property of both parties to the relationship and determine if an order is to be made for the division of the property of the parties and if the Court considers such an order is warranted, then the nature of that order. However, if I am wrong in this view then I also find that the Defendant’s application, also meets the requirements of sub-section (2) of Section 9 of the Act.
Steps to be taken in considering a claim.
Generally, in most applications, the appropriate manner of considering a claim under the Act is to deal with it in the following steps:
·First, identify and value the property of the parties at the date of trial;
·Secondly, determine whether any and if so what contributions were made of the kind set out in sub-section (1)(a) and (b) of Section 11; and
·Thirdly, consider what other relevant matters, if any, need to be taken into account as provided by sub-section (1)(d) of Section 11.
After considering these matters, as I stated earlier, if the Court is of the opinion that an order should be made under Section 10 adjusting the property interests of the parties, then the Court must determine its final order in a way which is just and equitable.
I have mentioned that the first step in the exercise is to identify and value the assets of each of the de facto partners at the date of trial. This is the ideal time because it is the time when adjustments to the interests of property of the parties takes place (Evans v Marmont (supra) at 75; Parker v Parker (1993) 16 Fam LR 863 at 874; Love v Chidley (2002) SADC 36 at para 138 (page 33)). However, whilst that may be the general rule there may be circumstances where the time of separation or some other time may be appropriate depending upon the circumstances. (Parker v Parker (supra) at 874; Theodoropoulos v Theodesco (1995) 38 NSWLR 424 at 432).
The Approach to be adopted.
Whilst I have identified the steps to be taken in a claim under the Act, there still remains the wider question of how a Court is to evaluate the matters raised in Section 11 and the manner by which a Court reaches its final determination under Section 10.
The weight of authority suggests that the most common form of approach in reaching a final determination is what has been described as the “holistic value judgment” approach.
In Davey v Lee (1989) 13 Fam LR 688 McLelland J, when considering Section 20 of the New South Wales legislation, described the approach in the following manner (at 689):
“By that section the court is empowered to make such order adjusting the interests of the de facto partners in property of both or either of them as seems just and equitable having regard to “contributions” of the kinds described in para (a) and (b) of sec. 20(1). In approaching the exercise of that power it is necessary to bear in mind that a domestic relationship differs in fundamental respects from a commercial partnership .
Typically a de facto relationship involves the mutual conferring and receiving of benefits (be they emotional, social, sexual or intellectual) of a kind which are incapable of evaluation in monetary terms, as well as other benefits which are, or may be in varying degrees, capable of such evaluation. Often, one or other, or both, of the parties may value non-material contributions to the welfare of the family more highly than material contributions. These however are not matters which lend themselves to detailed examination and analysis by a court.
Furthermore in the context of such a relationship, it would usually be highly artificial to attempt to evaluate ‘contributions ... to the welfare of the family’ of the kinds referred to in sec.20(1)(b), including those ‘made ... in the capacity of homemaker or parent’ simply by reference to what it might cost in the market place to hire the provider of a particular service, such as a housekeeper or childcarer, to perform similar activities to those of the contributing partner. In the context of a domestic union, ‘homemaking’ and ‘parenting’ are typically shared activities, and although it may often be found that one partner devotes more time than the other to particular tasks within these general descriptions, it would rarely be feasible or realistic to attempt to evaluate such relative contributions in monetary terms, or in isolation from the nature and incidents of the relationship as a whole.
It is thus apparent that the court is not required under sec. 20 to undertake a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time-consuming and expensive of litigious exercises) by examining every alleged “contribution” of the kinds described in the section with a view to putting a monetary value on it in order to reach an accounting balance one way or the other, which is to be then eliminated by the requisite financial adjustment. Rather the court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.
Such an approach was followed by Cooper J in Ferris v Winslade (1997) 22 Fam LR 725 at 733 when considering a claim under the Australian Capital Territory legislation. The approach referred to in Davey has also been approved in this Court in Germinario v Pinkerton (supra at 433) and Love v Chidley (supra at para 138 (38)).
McLelland J in Davey identified three important points. The first is that there are some contributions which are capable, in varying degrees, of evaluation in monetary terms and others which are incapable of such evaluation. The second is that in the end, it is not possible, nor is it in accordance with principle, to undertake some form of accounting exercise. The third is that in making a final determination a Court is required to make a holistic value judgment after having evaluated all the relevant contributions and other relevant matters.
It seems to me that the “holistic value judgment” approach is similar to that described as the “global” approach when the Family Court is determining entitlement to property of the parties to a marriage under Section 79 of the Family Law Act 1975 (Cwth.). That approach involves assessing the contributions of the parties, similar in nature to those described in Section 11(1)(a) and (b) and other matters and then viewing the matter globally when making an order which is just and equitable. In so doing the Court does not differentiate between particular property. This is to be contrasted with the “asset by asset” approach where the Court makes orders with respect to discrete assets of the parties.
In Norbis v Norbis (supra) the High Court indicated that whilst the Full Court of the Family Court preferred the “global” approach it could not determine that a Court must follow that approach in determining property issues. The High Court held that the discretion to be applied was a wide one and where a Judge adopted the “asset by asset” approach, in appropriate circumstances, that would not cause the discretion to miscarry. In other words, the “asset by asset” approach may be preferable in some circumstances.
In my opinion, there is no legitimate reason to suggest that the “holistic value judgment” approach is the only manner in which a final determination can be made by a Court under the Act. Where it is appropriate an “asset by asset” approach may be adopted.
There is one final matter to which I wish to refer. Whatever approach is adopted, it is recognised that there may be some contributions which are capable of being evaluated with some degree of precision in monetary terms and some which are not so capable of being evaluated. There are some contributions, which by their very nature make it undesirable to attempt to evaluate in money terms. With respect to those assets which are capable of being evaluated with some degree of precision in money terms, it is important to recognise that a Court is not required to undertake a mathematical exercise. The approach is best described by Mason and Dean JJ in Norbis when they said (at 524):
“… that although mathematical precision is certainly not required, there is ordinarily a need to know the circumstances in which assets were acquired and the general extent of each party’s contribution to them”.
I now turn to consider the factual issues arising in the proceedings.
The Relevant Property and the Value thereof.
I mentioned earlier that the first step in considering a claim under the Act, in most cases, is to identify and value the property of the parties at the date of trial. The identification of the property in this case is a simple one. Both parties agree that an order under Section 10 of the Act is to be confined to a house property situated at 207 Wattle Street, Malvern and a fund which has been invested and presently stands at about $67,000. Both parties own other property. Their property includes items, such as furniture, interest in a superannuation fund and a motor vehicle. However, as I mentioned earlier, it is agreed between them that each party should retain any other property held by each of them at the date of trial. The house property at Wattle Street is registered in both the parties” names as joint tenants. The fund is held on behalf of both parties jointly.
With respect to the Wattle Street house, there is a dispute as to its valuation. I therefore need to resolve this dispute, for the purposes of these proceedings. I should also mention that in addition to the dispute regarding the valuation of the house, there is also a dispute regarding what should be done with the house if it is determined that an order should be made under Section 10. As I mentioned earlier, the Plaintiff seeks a division of the property in equal shares. The Plaintiff also seeks an order that the house property be sold by auction and the net proceeds be apportioned between the parties in the manner determined in the final order. The Defendant currently lives in the house with her husband and small child. She seeks an order which would permit her to retain the Wattle Street property.
The Value of the Wattle Street House.
The Wattle Street house was purchased by the Plaintiff and the Defendant in December 1998 for $287,500. The front section consisting of four rooms has been described as a cottage style building, which was built in about 1900. The four main rooms in the front part of the house have been restored by the Plaintiff and the Defendant. The latter section of the house is described as a lean to construction, which contains a kitchen and adjoining family room, a bathroom and laundry. The laundry also has a second shower and a second toilet. Outside the house there is a carport at the rear, a large pergola and an outdoor entertaining area. In addition, there is an inground swimming pool in the rear yard.
Three valuers gave evidence. Mr John Eyre, was called by the Plaintiff. His valuation was $455,000 as at 1 July 2002. Mr Ian Sach, valued the property on 10 April 2002 at $380,000, however when he gave his evidence in July 2002, he said that at that time, the value would have increased by $15,000 to $395,000. Mr Peter Southwick, was also called by the Defendant. He valued the house on 4 April 2002 at $390,000. In his evidence in July 2002, he said that the value of the property at that time would have increased from the value at April 2002 but he was not prepared to nominate a specific value without being given time to consider the question.

There was not a great deal upon which the valuers disagreed. They all accepted that the house was in a good location. Further, that the front four rooms were beautifully restored. That it was at the preferred end of Wattle Street, in that houses at the Western end of Wattle Street, nearest to Unley Road, are likely to fetch a higher price than those houses in Wattle Street at the Eastern end. It was accepted by all the valuers that a purchaser would be likely to demolish the lean-to section of the house at some time and replace it with a structure more in keeping with the front section of the house. They all agreed that there was some internal repairs that needed to be undertaken at the back section of the house. Furthermore, that repairs to the outside veranda and the fences were needed, although Mr Eyre did not place as much importance on these factors as did Mr Sach. Each valuer also accepted that the grounds surrounding the house needed to be improved. They were also agreed that the market in the Malvern area is a buoyant one and that they had not seen such a market for many years.
There were some differences of opinion regarding the house itself. For example both Mr Eyre and Mr Southwick felt that the swimming pool added value to the house but Mr Sach felt that it added no value because of its location. There were also other differences between the valuers but in the end there were realistically two main areas of contention between them.
The first related to comparable sales. Each of the valuers had valued by using the comparable sale method of valuation. Both Mr Sach and Mr Southwick challenged many of the sales used by Mr Eyre, suggesting that these sales were not appropriate to adopt for the purpose of comparison with the property at 207 Wattle Street. On the other hand, Mr Eyre felt that many of the sales used by both Mr Sach and Mr Southwick were not comparable with the subject property.
The other main dispute between the valuers relate to the effect of the traffic conditions in Wattle Street on the value of the house. Mr Eyre accepted that Wattle Street was a busy through road and provided reasons why he formed the view that despite the volume of traffic on the road it was not a negative factor in valuing the property. Both Mr Sach and Mr Southwick considered that it was a negative factor and took that into account arriving at their respective valuations.
Mr Eyre undertook five valuations in all. The first of his valuations was made on 1 February 2000. He updated his initial valuation on four further occasions, the last being on 1 July 2002. One of the criticisms that Mr Southwick directed at Mr Eyre’s valuation was that some of the properties he used to compare with the property at 207 Wattle Street were situated in quieter traffic streets. He said that because of the traffic characteristics of Wattle Street, it was more appropriate to use properties, for comparison, which were situated in Wattle Street or streets which carry a similar traffic capacity to Wattle Street. This criticism was rejected by Mr Eyre.
Because of the view I take, I do not see any profit in resolving the dispute regarding comparable properties. Whilst both Mr Sach and Mr Southwick accepted that they needed to adjust their valuations to take into account the period of time between April 2001, being the time of their respective valuations, and July, being the date of Trial, I formed the view that in April neither of them had fully taken into account the strength of the market in Malvern at that time. Mr Eyre had valued the property in April 2002, in the same month as the other two valuers, at $445,000. Whilst I am of the opinion that Mr Eyre’s final valuation is too high, for reasons which I will provide shortly, I consider that his assessment of the strength of the market is to be preferred to that of the other two valuers.
In his valuation of 1 July 2002 Mr Eyre referred to a sale on 4 May 2002 of 160 Wattle Street, Malvern, a maisonette, which is a short distance from 207 Wattle Street, which brought a price at auction of $442,000. The maisonette was described as very attractive. He pointed out that a maisonette which has a common wall is an inferior type of dwelling to a free standing dwelling such as that at 207 Wattle Street.
Mr Southwick, in his evidence, said that whilst it was a maisonette, it was a sale that a valuer should have regard to. He acknowledged that a maisonette was an inferior type of property to that of a free standing home. He said the sale was an indication of the strength of the market. He also said that the sale was an influential sale for the purpose of considering his opinion on the value of the subject property.
By contrast, Mr Sach, in his evidence, did not accept the notion that it was an inferior property to that at 207 Wattle Street. His view was that a maisonette, with a full stone dividing or party wall would be likely to reduce any noise factor. His opinion was that a maisonette was not, because of that factor alone, inferior to a free standing property. I found this evidence unconvincing. I gained the impression that he wished to avoid confronting the property as one which may cause some doubts to arise with respect to his valuation. His approach to this issue was in contrast to that of Mr Southwick who acknowledged that a maisonette is an inferior property to a free standing house and that the sale was a relevant one to consider.
Whilst acknowledging that both Mr Southwick and Mr Sach have indicated that they needed to increase their respective valuations to take into account the period of time between April 2002 and the date of trial, I am of the opinion that both valuers have undervalued the property as at April 2002. As I said, I formed the view that they have not sufficiently taken into account the strength of the market at that time. The price of the maisonette lends weight to that view. As Mr Southwick said, it was an influential sale for the purpose of re-evaluating his valuation. I gained the impression that he was surprised at the price that was achieved for the maisonette.
I should also indicate that I formed the view that in arriving at his valuation, Mr Sach placed too much emphasis on what he perceived were the negative aspects of the property. I also felt that he was in error in suggesting that the swimming pool did not add weight to any valuation of the property. I preferred the evidence of Mr Eyre and Mr Southwick that the swimming pool added value to the property.
I mentioned earlier that I felt that Mr Eyre’s valuation was too high. In my opinion he should have taken into account the traffic density of Wattle Street as a negative factor. He acknowledged that Wattle Street was a busy through road but concluded that it was not a relevant factor in reaching his conclusion. I felt that the evidence of Mr Southwick and Mr Sach in support of their respective conclusions that it should be treated as a negative factor was more convincing.
It can be seen that I have not accepted the ultimate valuation of any of the valuers although I have accepted some of the opinions expressed by the respective valuers which were part of the reasoning leading to the ultimate valuation.
In my opinion Mr Southwick’s valuation needs to be adjusted upwards to take into account the matters I have referred to previously. On the other hand, Mr Eyre’s valuation needs to be adjusted downwards to take into account his failure to acknowledge the relevance of the traffic density. In the end, with the necessary adjustments, I do not think they would have been that far apart. In my opinion, adjusting in either manner, the appropriate value of the property at 207 Wattle Street, Malvern is $430,000.
I should point out that there is a mortgage secured on the property. At the date of Trial there was approximately $100,000 owing on the mortgage.
The Plaintiff’s Circumstances Prior to Commencing the Relationship.
The Plaintiff was born on 24 December 1956, so he was 45 years of age at the date of the trial. After completing his secondary education, the Plaintiff has over the years engaged in a number of varying occupations. After completing a farm management course the Plaintiff worked on farming properties and was involved mainly in the area of financial management. He spent about three years with the Rural Finance Commission in Victoria assessing farm properties which were destroyed in the Ash Wednesday bush fires, to determine their viability for the purpose of providing loan funds. In 1983 he commenced an Associate Diploma in Valuation on a part-time basis and successfully completed the course six years later.
The Plaintiff returned to Adelaide from Melbourne in 1985. At that time he joined National Mutual Property Services as a property manager and assistant valuer. He remained in that position until the end of 1991. He was engaged in managing buildings in the central business district in Adelaide and also buildings in the suburbs. During this time he was also engaged, as part of his employment, in a number of tenancy fit-outs. This involved him in negotiating with contractors for work to be done in the fit-outs. He also did valuation work on houses and commercial buildings.
The Plaintiff was married in 1987 and divorced about 1990. A son, James, was born in l988. Prior to the marriage the Plaintiff and his wife acquired a property at Parkside which was in a run down state. The Plaintiff spent about two years engaged in renovating it. The renovations involved him replastering two of the rooms, painting the house throughout and rewiring the house. In the course of refurbishing the house, he removed the concrete render from the outside of the house and exposed the stone work. The refurbishment also included removing the roof and the flooring. It was a complete refurbishment of the house.
In 1992 the Plaintiff returned to Melbourne and took up a position as a property manager with a real estate firm. He remained in that position for about two years. The Plaintiff was in this employment at the time he and the Defendant commenced their de facto relationship.
The Defendant’s circumstances prior to commencing the Relationship.
There was very little evidence provided about the Defendant’s circumstances prior to the commencement of the relationship. At the date of trial she was about 32 years of age. In about October 1993 she was transferred in her employment with National Mutual to Melbourne. At that time she was employed as a financial planner. Her duties also included training other financial planners in Adelaide regarding compliance issues.
Assessment of the Plaintiff and the Defendant as witnesses.
Before I proceed any further I should say something about the Plaintiff and the Defendant as witnesses. The proceedings were conducted in an acrimonious atmosphere. The antipathy which each of the parties felt towards each other was clearly evident. The evidence of each of them needs to be viewed against that background of antipathy. I felt at times that their evidence was coloured by that antipathy. I also felt that the passage of time had dimmed their respective memories on some subjects.
As will be seen shortly, one of the main issues in the trial were the contributions made by each of the parties to the renovating of a house property at Osborne Street, Williamstown in Victoria and their respective roles in renovating the Wattle Street house. I formed the view that the Defendant on many occasions, with justification, diminished the role played by the Plaintiff in each of those projects. I felt that the Plaintiff was more generous in acknowledging the role played by the Defendant. I do not suggest that it was a deliberate attempt on the part of the Defendant to diminish the Plaintiff’s role in the renovation of these houses. I reached the conclusion that her memory has been diminished by the passage of time and that together with the bitterness she feels towards the Plaintiff, has led to her unconsciously failing to recognise the significant role played by the Plaintiff in the renovations.
At times I thought that the Plaintiff tended to expand the role he played to a greater extent than the reality demanded, particularly, at times in his assessment of the hours he assigned to his contributions to a particular undertaking. Again, I did not feel that this was an attempt to deliberately mislead. It was probably brought about by the same combination of factors that I mentioned when referring to the Defendant’s evidence.
In other aspects of their evidence I also felt that the memories of both the Plaintiff and the Defendant failed them. Both of them tended to want to argue their case on occasions when answering questions. On occasions the Defendant was very defensive in giving some of her evidence and at times was not prepared to answer the question directly. On those latter occasions the answer was usually accompanied by an argumentative statement on her part to ensure that her position was fully understood. I gained the impression that both of them were anxious to ensure that the other did not appear to gain any advantage.
The Early Days of the Relationship.
I mentioned earlier that in late 1993, the Defendant relocated to Melbourne following a transfer with her employment at National Mutual. The Plaintiff and the Defendant had been acquainted with each other whilst they were both working for National Mutual in Adelaide. They met again by chance at the Melbourne Airport.
In November 1993, the Defendant accepted an offer by the Plaintiff to occupy a bedroom in his apartment. About a month later the relationship developed into a personal one. It was agreed by the parties that the de facto relationship commenced on 7 December 1993.
As part of the arrangements between the Plaintiff and National Mutual regarding her relocation to Melbourne, it was agreed that National Mutual would pay the costs involved in her purchasing a home. As a result, she commenced looking for a home during the period she was living in the apartment with the Plaintiff. She finally purchased a house at Union Street, Williamstown towards the end of May 1994 for $159,500. The Defendant financed the purchase of the house partly from her own funds and partly from funds borrowed from National Mutual.
The Plaintiff and the Defendant moved into the house at Union Street in about June 1994. Prior to that time, whilst living in the apartment, they both shared the rent and other expenses. It was over the Union Street house that the first of many contentious issues arose between the Plaintiff and the Defendant in these proceedings. The Plaintiff said that whilst at the Union Street house, he paid some rent to the Defendant and that generally they would meet the other expenses which were incurred in running the household equally. The Plaintiff could not recall the amount of the rent. The Defendant said that the Plaintiff did not pay any rent during the period at Union Street. I prefer the evidence of the Plaintiff on this subject. The Plaintiff and the Defendant shared the expenses at the apartment. There was nothing advanced by the Defendant to suggest that such an arrangement dramatically altered to the extent that the Plaintiff did not pay any rent at all. It seems implausible that it would be so.
A further contentious issue with respect to Union Street arises out of the work performed by the Plaintiff on that property. The Plaintiff gave evidence of work performed on this property and properties which were jointly owned by the Plaintiff and the Defendant during their relationship. The Plaintiff during his evidence also produced a Schedule setting out the work which he asserted he performed on each of the properties, the time that he estimated was taken for each item of listed work and a calculation in money terms of the value of that work (sometimes called “the Schedule of Work”). I propose to examine that Schedule in a little more detail later.
With respect to Union Street, it was not disputed that the Plaintiff plastered a fire place in the main bedroom, which improved the style of the bedroom, he painted some of the rooms and worked on removing an external toilet and installed a shed in its place including the pouring of a concrete slab for the shed. The Plaintiff also gave evidence of installing an automatic watering system.
The Defendant, as I said, did not quarrel with the work which the Plaintiff said he had undertaken on the property. However, with some of the work, such as the removal of the toilet and the construction of the shed and the installation of the automatic watering system the said work was performed by both of them. The Defendant also challenged the Plaintiff’s assessment of the time he was involved in some of the items of work.
I find that the Plaintiff did perform the work which he described. I also find that the Defendant also engaged in some of the work which the Plaintiff had undertaken. The work performed by the Plaintiff contributed to the improvement of the Defendant’s house.
Whilst at Union Street the parties began to investigate the possibility of acquiring another house with the intention of renovating it. I find that this exercise was initiated as a result of the Plaintiff’s interest in becoming involved in investing in a property, renovating the same and then selling it. He had in late 1994 discussed such a project with a friend. The idea for the Plaintiff and the Defendant to become involved in such a project was borne out of the Plaintiff’s initial interest in engaging in such an activity.
Both the Plaintiff and the Defendant set out to locate a property which could be renovated. By chance, the Defendant was directed to a property in Osborne Street, Williamstown. The property was in a very poor state of repair. It was clearly a property suitable for renovation. The Plaintiff and the Defendant agreed that they would acquire the property together.
Renovation of the Osborne Street, Williamstown House.
On 3 March 1995, the Plaintiff and the Defendant entered into a written agreement to acquire the Osborne Street house for a total of $197,500 which sum included costs. Settlement was to take place three months later. It was a timber house. The house consisted of five main rooms and a central hallway. The plan of the parties was to completely renovate the house. Prior to settlement, the Plaintiff negotiated a Licence to Occupy the Premises. This was done so that work on the house could commence before settlement. Renovation work did commence prior to settlement.
Settlement on Osborne Street took place about late June or early July 1995. The property was transferred into the names of the Plaintiff and the Defendant as joint tenants. The Plaintiff contributed nearly $20,000 to the purchase price. The Defendant contributed about $44,000. Initially the Defendant, in her evidence, claimed that she contributed a greater amount, but in cross-examination conceded the correct amount was $44,000. The balance of the purchase price was provided by a loan which the Plaintiff and the Defendant jointly borrowed.
The renovation of the Osborne Street house was an enormous undertaking. The extent of the contributions made by the Plaintiff and the Defendant to the renovations of the house was one of the major issues in the Trial. It was the Plaintiff’s contention that his contributions far exceeded that of the Defendant. I should also mention at this stage that another issue in the Trial was the respective contributions made by each of the parties to the renovation of the Wattle Street, Malvern home. Once again, the Plaintiff’s case is that his contributions far exceeded the Defendant’s contributions. It is the Defendant’s case, with respect to both properties that her contributions were equal to that of the Plaintiff’s contributions to the renovation of both properties.

I mentioned earlier, when dealing with the Defendant’s house at Union Street, that the Plaintiff had prepared a Schedule of Work which he said he performed not only with respect to Union Street but also with respect to the three properties which the Plaintiff and the Defendant owned jointly during the period of their relationship. The third house was at Russell Place, Williamstown in Victoria. As I said, the Schedule set out in detail the work which the Plaintiff asserted he performed, the date when such work was performed and the number of hours which the Plaintiff claimed he spent on the particular item of work listed. He also evaluated his contribution in money terms by reference to an hourly charge rate. The Plaintiff also gave evidence in support of the Schedule of Work expanding on the nature of work and of the extent of his involvement in the renovations.
The renovation of Osborne Street was undertaken in four stages. The first Stage involved the three bedrooms and the lounge at the front of the house. Stage Two consisted of relocating the bathroom from a position at the rear of the house to a position in closer proximity to the bedrooms. The renovation of the living and kitchen area at the rear of the house was Stage Three of the development. The final Stage was the addition of a deck at the rear of the house. Landscaping both in front of the house and to the rear of the house was also undertaken. Most of the work on the house took place over a period from May 1995 to December 1997.
In determining the issue of contributions to the renovations of the house I do not propose to deal with each individual item of work, identified by the Plaintiff in his Schedule of Work. In my view, the issue cannot best be resolved by dealing with the Schedule on an item by item basis. The Plaintiff’s evidence is that he engaged in both physical and non-physical work with respect to the renovations. Non-physical work involved negotiating with contractors who performed some of the work, managing those contractors and acquiring materials for suppliers. The Plaintiff said he also became involved in some planning. In general terms, the Plaintiff conceded that the Defendant assisted him, from time to time, when he engaged in renovating work on the property and that she also engaged in some aspects of the non-physical work. However, it was his evidence that he was the driving force behind the project and that his contributions both physical and non-physical outweighed that of the Defendant by a large margin.
The work in renovating the house was done partly by employed contractors and partly by the contributions of the Plaintiff and the Defendant. For example, a contractor restumped the house, it being the type of house whose foundations consisted of stumps imbedded in the ground. Further examples of contractors involvement, included the installation of underfloor gas heating, a plasterer resheeting the internal walls and ceilings, a builder constructing the bathroom, a painter employed for the external painting of the house and a plumber installing the kitchen and laundry plumbing. This list is not exhaustive of the role played by contractors. As I said, these are examples of where contractors were engaged to undertake work.
The Plaintiff gave evidence of his involvement in the engaging of these contractors and managing them during the course of their work. I have no reason to doubt that he was involved in engaging and managing these contractors. He would have called upon his experience, through his earlier employment with National Mutual where part of his duties was the fitting out of buildings for tenants.
The Plaintiff also gave evidence that he assisted some of the contractors, from time to time. He said that when the plastering contractor resheeted the walls and ceilings during Stage One of the project that he took two weeks leave from his employment for the purpose of providing such assistance. Another occasion is when he said he excavated the trenches for the plumbers who were involved in installing the plumbing for the new bathroom. Again this description of the assistance the Plaintiff said he provided is not exhaustive of the evidence he gave regarding this subject. He described other assistance furnished to contractors. I accept his evidence in relation to the assistance he said he supplied.
Apart from the work performed by the contractors, there was an enormous amount of other renovating work which was undertaken. I accept the Plaintiff’s evidence of the nature of the work undertaken by him. This work involved demolition of various parts of the building, preparing and painting walls, ceilings and timber frames, installing insulating material behind walls and above ceilings, affixing skirting boards and architraves, laying floor joists and sheet flooring to the living/kitchen areas. These are again but examples of the work undertaken with respect to internal renovations to the house.
The Plaintiff’s evidence was that some of this work was undertaken by him solely, in particular the work of a heavy nature such as the laying of the floor joists and sheet flooring to the rear section of the house. The Defendant acknowledged that some of the work which she was not physically capable of performing was done by the Plaintiff. The Plaintiff also gave evidence that a considerable quantity of the other work was undertaken by him with some assistance by the Defendant. For example, it is the Plaintiff’s evidence that the Defendant provided assistance in the installation of insulation in the ceilings, the demolition work at the rear section of the premises and the sanding of various surfaces for painting and the painting of parts of the premises. However, it is the Plaintiff’s evidence that he did the greater part of the work with the Defendant providing assistance. The Plaintiff said that the Defendant’s assistance was greater with respect to some aspects of the work than others. The Plaintiff also acknowledged that the Defendant performed some work herself.
The renovation of the house included replacing electrical wiring and installing wiring for the television and telephone. As will be seen shortly, the Plaintiff commenced an electrical apprenticeship in about May l997. However, he had electrical skills prior to this time. It was the Plaintiff’s evidence that he removed all the wiring and rewired the house for electricals, television and telephone services. The Plaintiff said that the electrical work included the installation of ornate lighting throughout the house and the installation of a security system. The Plaintiff said that he also ran electrical wiring to the rear shed. An electrician was employed also to do some work in the hallway and in the kitchen area. All this evidence I accept.
There was considerable work undertaken both on the outside of the building and in the grounds surrounding the house. It was not disputed by the Defendant that the Plaintiff constructed a large timber deck, which was attached to the rear of the house. The Plaintiff said that he did some renovation work to the front veranda. He said the front fence was demolished and a new fence was erected. He said that both he and the Defendant were engaged in the demolition. The Plaintiff said that he and the Defendant painted the pickets for the replacement front picket fence. He also said that they both painted the iron lattice work on the veranda. The front garden and rear garden was landscaped and a watering system was installed. It was his evidence that the Defendant assisted him with this work but that he performed the major part of that work.
The Defendant said that the physical and non-physical contribution by each of the parties to the renovations at Osborne Street were equal. She did not accept that the Plaintiff was the renovator and that she provided assistance from time to time. As I mentioned, she accepted that there was some work that she was not physically capable of undertaking but she said that was balanced out by other work that she performed. She was not prepared to acknowledge that the Plaintiff had any particular building or trade skills. It was her view that both of them came to the renovations with very limited renovation skills and that they acquired skills as they went. Apart from the work which she was not physically capable of doing, it was her evidence that she made a contribution to all of the other work undertaken. The Defendant said that with respect to the non-physical work such as the planning of the renovations, the acquisition of materials and the managing of the contractors that she contributed equally with the Plaintiff.
I found the Defendant’s evidence regarding the renovations at Osborne Street to be unsatisfactory. I cannot accept her evidence that the Plaintiff came to the renovation project without any actual skills. His evidence was that he was involved in the extensive renovations of a house in Adelaide prior to this time. He had also been engaged, as part of his employment in the fit out of buildings under his management. He was clearly a man who had skills with his hands. This is demonstrated by his successful completion of an electrical apprenticeship, after taking it up in May l997. I thought this evidence of the Defendant was representative of the attitude she displayed to the Plaintiff’s contribution to this and the other properties. As I stated earlier she quite often sought, I felt wrongly, to diminish the Plaintiff’s contributions. As I said earlier I did not gain the impression it was a deliberate attempt to mislead. I also felt that her memory let her down at times with respect to the work undertaken.
On the other hand, I thought the Plaintiff had a more reliable memory of the nature of the work involved in the project. As I mentioned earlier, I thought he was more generous in acknowledging the contribution made by the Defendant, although at times I thought he also failed to acknowledge the full extent of her contributions. I formed the view generally that the evidence of the Plaintiff regarding the work undertaken and the distribution of the work was generally more reliable than that of the Defendant.
The Schedule of Work produced by the Plaintiff, also included the number of hours which he allocated as being his contribution for each item of work in the Schedule. I have some misgivings about the reliability of his time allocations on occasions. Some of the allocations of time seems to be out of proportion of the particular work described. I did not form the opinion that it was a conscious inflation by him. However, I do not see any profit in evaluating the time contributions assigned by the Plaintiff to each of the items of work identified in the Schedule of Work. It seems to me that the most profitable way of dealing with this issue is to assess the overall contributions made by the Plaintiff and the Defendant.
In accepting the Plaintiff’s evidence regarding the extent of his contribution leads to the conclusion that he made an enormous contribution to the renovations. That contribution involved both physical and non-physical activities. I also accept that the Defendant made a significant contribution to the renovations both physical and non-physical. However, I find that contributions by the Plaintiff to be much greater than that of the Defendant. I formed the view that many of the contributions made by the Defendant were more in an assisting role to the Plaintiff. Having said that I also acknowledge that she did perform some work on an equal footing to that of the Plaintiff.
I accept the Plaintiff’s evidence that he was the initiator of the plan to undertake the renovation of the house. In my opinion, his experience and skills were key factors in the completion of the project.
The renovations were enormously successful. The house was transformed from an ugly duckling into an elegant swan.
Financial Contributions towards the Osborne Street House.
Having dealt with the physical and non-physical contributions to the renovations of the Osborne Street house, I wish to return to the time when the Plaintiff and the Defendant acquired the property. I mentioned that in purchasing the property, the Plaintiff contributed about $20,000 and the Defendant contributed approximately $44,000. This latter amount came from the proceeds of the Defendant’s house property at Union Street. At the time of purchase, the Plaintiff and the Defendant borrowed approximately $170,000. The sum of $148,000 or thereabouts was needed to complete the purchase. The balance of the finance was to be used for the purpose of renovating the house. In addition to the finance available to pay for the renovations, the Defendant made two separate contributions to the cost of the renovations. She provided about $7,800 from her savings. Further, she sold her Toyota Corolla motor vehicle in the early part of 1996 for about $8,000. This amount was also contributed by the Defendant to the cost of the renovations.
In June 1996 the Plaintiff contributed a further $1,400 approximately when he cashed in a Deferred Annuity held with National Mutual.
The renovations were also financed on occasions by money paid from a joint account which the Plaintiff and the Defendant established with the ANZ Bank about the time that the Osborne Street property was purchased. They pooled their respective net salaries by paying the same into the joint account. At that time, in May 1995, there was very little difference between the net income of the Plaintiff and the Defendant. This had been the position since they began to cohabit in late 1993 and continued, certainly to the end of the financial year of 1996. For the financial year of ended 1997, there was not a substantial difference between their net incomes up until May 1997. At that time the Plaintiff ceased his employment in the real estate industry and commenced work as an apprentice electrician. From that point the net income of the Plaintiff was reduced.
Most of the renovations were completed by September 1997. The Plaintiff had continued to pay his income after he commenced his apprenticeship into the joint account. As the contributions to the joint account by both the Plaintiff and the Defendant were similar for most of the period of the renovations, I find that both parties equally funded the cost of renovations which were financed from the joint account. There may be a minor difference in the period from April through to September but the evidence discloses that there was only a small quantity of work performed during this period.
The Plaintiff’s Electrical Apprenticeship.
Another contentious issue related to the circumstances which led to the Plaintiff taking up an apprenticeship as an electrician in April 1997. It was the Plaintiff’s evidence that some time after the renovations at Osborne Street commenced, the parties decided that they would embark upon a business of acquiring and renovating houses. His evidence was that he told the Defendant he was not prepared to engage in such a business without having a fallback position in case the business was not successful. He said he wanted to complete an apprenticeship to become an electrician. The Defendant’s evidence is that there had not been any agreement to embark upon such a business and that the idea of the Plaintiff taking up an apprenticeship as an electrician arose because he wanted to change from his current occupation. Both parties recognised that if the Plaintiff did undertake an apprenticeship, his income would be reduced significantly.
I am satisfied that about the time that the Plaintiff decided that he would take up an apprenticeship that the parties had formed an intention to become involved in further renovating in the future. A Memorandum prepared by the Defendant and entitled “Time Line” lends support to that conclusion. The evidence is that it and other Memoranda setting out various options to acquire and renovate houses were prepared as a result of discussions between the parties. The “Time Line” Memorandum set out a time line for selling Osborne Street and acquiring other properties for renovation. The terms of the document suggests that it was prepared some time before June 1997.
Having said that I am also satisfied that at the time the decision was made the Plaintiff was looking to change his employment. I am not prepared to find that the change of employment was brought about predominantly to assist the parties common pursuit in property investment as was urged upon me by Mr Birchall, Counsel for the Plaintiff. I find that the Plaintiff was at the time seeking to change his employment. I find that discussions took place between them regarding the change of employment in the context of future projects because both understood that the Plaintiff’s income would be reduced. The Defendant was prepared to go along with the change of employment. In doing so, she must have understood that the financial burden on any further renovations would fall more heavily upon her.
Sale of the House at Osborne Street.
Some time in 1994 the Defendant changed her employment as a funds manager from National Mutual to Seal Corporation. The Defendant had always held the view that she would like to return to South Australia because that was where her family and most of her friends resided. About the middle of 1998, the Defendant applied for a position with Zurich Financial Services in Adelaide. She had earlier informed the Plaintiff that she was actively looking for a position in Adelaide. At the time, the Plaintiff was not happy about returning to Adelaide. He was partway through his apprenticeship. He had also established two small businesses in property administration and electrical contracting. However, as he said, he was in a long term relationship with the Defendant and agreed that he would move to Adelaide with her. This move necessitated the sale of the house at Osborne Street.
The Defendant moved to Adelaide about August 1998. The Osborne Street house was placed on the market shortly prior to that time. I accept that the Plaintiff became involved in negotiations with the land agent regarding the payment of his commission and negotiated an incentive commission agreement with him. The Plaintiff remained in Melbourne for about a month. During that time the Plaintiff closed down his property administration business and his electrical contracting business. Up to this time these businesses had generated a small amount of income, which supplemented the Plaintiff’s apprenticeship income. He then followed the Defendant to South Australia.
The Osborne Street house was sold prior to auction for $470,000. Settlement took place on 13 November 1998 and the net proceeds of a little over $248,000 was banked in the joint account with the ANZ Bank on that day.
Purchase of the Wattle Street, Malvern House .
The Plaintiff joined the Defendant in Adelaide about September 1998. He had transferred his apprenticeship to an electrical contractor in Adelaide. He was in the second year of his apprenticeship at that time. The salary he received in Adelaide was considerably less than the amount he received in Melbourne. I mentioned earlier, that he had closed his two small businesses, being the electrical contracting business and the property administration business. The latter had been established fourteen months earlier and the electrical contracting business had been operating for about eight months. Both of them had made a modest profit since they had been established and their closure further diminished the Plaintiff’s income.
Both the Plaintiff and the Defendant became involved in looking for a property to acquire. It was their intention to acquire a property which they could renovate. Eventually they purchased the property in Wattle Street, Malvern in December of 1998, as joint tenants, at a cost of $287,500. It was a corner block, with side access from Rugby Street. It was planned to renovate the house, in stages.

Renovations commenced soon after settlement was completed. It was the Plaintiff’s evidence that he and the Defendant removed the carpet and removed the fireplaces. They both removed the cupboards in the front room. The Plaintiff said that he then proceeded to rewire the four front rooms and the hallway and install television and telephone services. He also installed security alarm cabling. To do the electrical work, the Plaintiff said that he chased out the walls in order that the cabling could be fitted into the walls to make the cabling invisible to the eye.
The Defendant disputed that the Plaintiff did the rewiring work in the house at Malvern. It was the Defendant’s evidence that this work was done by an electrical contractor. She said that the only work performed by the Plaintiff, associated with electrical work, was when he laid some cables down for the contractors. She said that she assisted him in this task. Her evidence in relation to other work on the property was that they each contributed equally to the work.
With respect to the dispute regarding rewiring the front rooms of the house at Wattle Street, I prefer the evidence of the Plaintiff. I mentioned earlier that he detailed the work he said he performed in relation to Wattle Street in the Schedule of Work. His evidence is that he recorded all of the work with respect to Wattle Street, at the time that the relationship ceased in January 2001, thus it was at the time when the work could reasonably be expected to be reasonably fresh in his memory. The Plaintiff acknowledged that electrical contractors were engaged to terminate the electrical connections in the front four rooms and the hallway. He also said the contractors returned after the rewiring to install a meter box. The Plaintiff displayed a more reliable memory of the work performed at Wattle Street. I gained the impression that in giving her evidence on the rewiring the Defendant was not relying upon her memory but was to a large extent relying on an Invoice from the electrical contractor which indicated that work had been performed. The Plaintiff explained that the Invoice was for the work he said was undertaken by the electrical contractor and the supply of material required by him for the re-wiring. I find that the Plaintiff did chase out the walls in the front part of the house and rewired the front section of the house for electrical, telephone, television and security services.
I also accept the evidence of the Plaintiff that he engaged in the work at the Wattle Street house described in the Schedule of Work. Included in the work performed by the Plaintiff was painting the walls and ceilings in the four front rooms, painting doors, skirting boards and trims, replacing light switches and fittings and upgrading lighting in the kitchen and dining areas. The Defendant also worked on the renovations to the house. I have previously referred to the evidence of the Plaintiff where he accepted that the Defendant engaged in renovation work. Apart from that work he referred to I accept that the Defendant was involved in painting and other parts of the work.
Whilst I accept the Plaintiff’s evidence regarding the nature of the work he performed, like the work in Osborne Street, I felt that at times his assessment of the time spent was unconsciously inflated. However, like Osborne Street I am prepared to acknowledge that he made a substantial contribution to the renovations. I also accept that it was a greater contribution than that made by the Defendant. However, in saying that, I do not intend to in any way diminish the contribution made by the Defendant.
Once again, the renovations produced a remarkable transformation. Mr Southwick in his valuation report described the renovation of the front rooms in the following terms:
“The front four main rooms are beautifully restored with many of the historic features highlighted”.
Finance for the Purchase and Renovation of Wattle Street.
I mentioned earlier that the cost of acquiring Wattle Street was $287,500. When the costs of the acquisition were added to the purchase price, the total amount required to be paid by the Plaintiff and the Defendant was $300,000 approximately. Settlement took place in December of 1998 and the property was transferred to the Plaintiff and the Defendant as joint tenants. A loan of $150,000 was obtained from the ANZ Bank. With respect to the remaining $150,000, the evidence is not entirely clear. Both parties gave evidence that the balance of the $150,000 was paid out of the proceeds of the sale of Osborne Street.
The proceeds of $248,000 had been paid into the joint account of the Plaintiff and the Defendant in November 1998. There is evidence from the bank records of joint bank account that a little over $136,000 was withdrawn, at or about the time that settlement was effected on the Wattle Street house. It is most likely that $136,000 was paid out of the account towards the purchase of Wattle Street. In addition to that amount, the Defendant paid from her own account the sum of $10,000, as part of the deposit for the purchase of the Malvern property on 6 November 1998. A further $4,000 was paid out of the joint account on 6 November 1998, which would also appear to be part of the deposit on the property. These amounts together with $136,000 add up to $150,000. On balance, it would appear that this was the manner in
Contractors were involved in the renovation of the Malvern property. The Defendant which the remaining $150,000 on the Malvern property was paid.gave evidence that she thought the total cost was about $33,500. This involved some reconstructing from documentary material and reliance on her memory. I do not feel confident that I could rely on this calculation. However, I am prepared to accept that substantial costs were incurred in employing contractors. The renovations took place during 1999.
Purchase of Russell Place, Williamstown.
In early 1999, the Plaintiff and the Defendant decided to purchase another property in Williamstown for the purpose of renovation and sale. The aim was to make a “quick” capital gain. They purchased a property at Russell Place, Williamstown in April 1999, as joint tenants, for the sum of $190,500. Of course, at this time they were living in Adelaide. Once again, the evidence regarding the financial contributions of the Plaintiff and the Defendant to the purchase of the property is rather sketchy. A deposit of $10,000, for the purchase of Russell Place, was paid on 23 February 1999 out of the joint account. The Plaintiff and the Defendant also borrowed the sum of $270,000 to provide funds to acquire the property and funds to renovate it. The evidence indicates that two other payments, were paid out of the joint account to assist in purchasing the property. The first being for $35,100 and the second for $13,704. These payments were made at about the time of settlement in April 1999.
Renovations of Russell Place.
Most of the work involved in the Russell Place project was undertaken by the Plaintiff. The Defendant, in her evidence acknowledged that she had limited contact with the project. The Plaintiff contributed only a little physical labour. Nearly all the work was performed by contractors. However, I accept his evidence that from the outset he was involved in managing the project, including the preparation of budgets, managing the builder and subcontractors and dealing with other parties involved in the renovations. This consumed a considerable amount of the Plaintiff’s time. The Plaintiff attended Melbourne on nine occasions for the purposes of dealing with issues arising from the project. On three occasions he drove to Melbourne and on the remaining occasions he took a plane. Difficulties arose with planning matters and he was required to negotiate with the Council for the purpose of resolving those issues. It was acknowledged by the Plaintiff, that the Defendant handled the payment of the accounts arising from the project.
The Plaintiff contributed his physical labour on two occasions. The first was over a weekend when he assisted a contractor during removal of asbestos from the premises. The second was when he attended at the site and assisted the electrical contractor with some wiring. This took about a day.
The renovations of the property continued throughout the remainder of 1999 and into the year 2000, to a period beyond the time when the de facto relationship ceased.
Further Funds Required for Russell Place.
The Russell Place project experienced financial difficulties. There were two reasons for this. The first was that there was a cost blow out. Originally it was estimated that the costs would be about $60,000. However, in reality the costs far exceeded that amount. The second was that delays had occurred in the project and this added to the costs problem. It became apparent that the funds borrowed would not be sufficient to complete the renovations. I accept the Defendant’s evidence that prior to cessation of the relationship she met various outstanding accounts for Russell Place from her own cheque account amounting to about $14,000. The Defendant actually said in her evidence that the total amount was about $16,000 but that would appear to be a miscalculation. I also accept that after the relationship terminated a little over $24,000 was paid out of the joint account to meet further liabilities which had arisen in the project.
Sale of Russell Place.
Whilst further funds had been furnished by the Defendant the project required additional funds if the renovations were to be completed. In March 2000 the Defendant unilaterally had the property valued in its unfinished state. The valuation was obtained because consideration was then being given to the borrowing of further money. It was valued at $245,000. In the end it was decided that the best way to resolve the problem was to sell the house in its unfinished state. In order to place the house in a condition for sale, the renovations needed to reach lock-up stage. The Plaintiff organised this. Although it reached lock-up stage there was still considerable work to be completed. The internal walls needed to be installed, the property needed to be painted, there were no bathroom fittings nor had any electricals been fitted. The external areas of the property also needed attention.
In any event, the house was placed on the market after it reached the lock-up stage. A contract was entered into for the sale of the property in April 2000 at a price of $330,000. Settlement was completed on 23 August 2000. After the discharge of all external liabilities, an amount of a little over $59,000 remained. This amount was placed on a term deposit by the solicitor who handled the settlement. It is this term deposit which is one of the two items of property the subject of these proceedings.
The Issue of Contributions to the Joint Bank Account.
Earlier in these reasons, I indicated that at the time of the acquisition of Osborne Street, the Plaintiff and the Defendant opened a joint bank account with the ANZ Bank. At that time they both commenced to pay their incomes into the joint bank account. The evidence indicates that about the end of 1997, the regularity of receipt of payments into the account from the Plaintiff had diminished significantly. During his evidence the Plaintiff identified four payments in the period of January 1998 which he said were sourced from his salary as an apprentice electrician. After that there were odd payments, from time to time, which the Plaintiff said were also sourced from his salary. It was his evidence that nevertheless, throughout the period of the relationship with the Defendant, he directed most of his salary to the benefit of the relationship. He said he made regular payments into a Visa card account, which was operated by the Defendant and to which the Plaintiff was also a card user. He also said there were occasions when he paid accounts which were incurred from time to time by the Plaintiff and the Defendant directly from his salary.
It was the Plaintiff’s evidence that he lived as frugally as possible on an apprentice’s salary with the balance of his salary being directed towards the common interest of the Defendant and himself. He said that when he was in Adelaide he would take $100 a week as his spending money and the balance would be directed to the joint interests of the Plaintiff and the Defendant.
The Defendant said that after December 1997 the Plaintiff ceased contributing to the common benefit of the relationship except for some odd occasions. She said that she complained to the Plaintiff from time to time. The Defendant produced Visa card records for the period from November 1999 onwards. Regrettably she did not produce any records for any earlier period. Accordingly, I am left to assess the evidence of the Plaintiff and the Defendant on this issue without the assistance of all of the records.
I accept the evidence of the Plaintiff. The Plaintiff had contributed to the common benefit of the relationship until the end of 1997 by paying his salary into the joint account. There is no evidence which provides any reason why he would not have continued the practice of contributing to the welfare of the relationship. There is no evidence to suggest, nor was it suggested, that the Plaintiff was, to use the phrase of Mr Birchall, “squirreling away” his income. Furthermore, there is no evidence to suggest that he was applying his income towards excessive personal indulgences to the disadvantage of the Defendant. Accordingly, I find that the Plaintiff continued throughout the period from the end of 1997 through to the cessation of the relationship to direct most of his income to the common benefit of the relationship.
The Defendant continued to have her salary paid into the joint account each fortnight during this period up to October 1998 when she began to direct only $900 each fortnight from her salary to the joint account. The remainder of her salary was then paid into her personal account. During the period from the financial year commencing 1 July 1997 to the date of termination of the de facto relationship, the Plaintiff’s net income from his work as an apprentice electrician was significantly less than the net income of the Defendant. To that extent, he did not have the same financial capacity to contribute to the common benefit of the relationship as the Defendant.
Cessation of the Relationship and the Aftermath.
Earlier in these Reasons I indicated that the relationship between the Plaintiff and the Defendant ceased on or about 7 January 2000. It would appear that the Defendant initiated the cessation of the relationship. The relationship had been experiencing difficulties prior to this time. The Defendant vacated the house at Wattle Street. The Plaintiff remained in the house. It would seem that prior to termination of the relationship the Plaintiff had commenced to install a sprinkler system to the front and side of the house, with some assistance by the Defendant. After the relationship terminated, the Plaintiff completed the installation of the sprinkler system. During this period the Plaintiff also laid a lawn at the front and side of the house. This involved bringing in topsoil and laying instant lawn.
The Plaintiff continued to occupy the house at Malvern until toward the end of March 2000. By that time the Plaintiff had decided to return to Melbourne to secure employment as an apprentice electrician on an adult apprentice wage. This was about forty percent more than the salary he was receiving in Adelaide as an apprentice.
Within a short time of the Plaintiff vacating the house at Malvern the Defendant moved in. By April 2000 the Defendant had established another relationship with a person who was eventually to become her husband. This person spent a substantial period of time living at the Malvern House with the Defendant prior to their marriage. The Defendant married in March 2001 and has lived with her husband in the house since that time. The arrival of the Defendant’s baby led her to decide to terminate her employment. She is no longer employed.
As I mentioned, the Plaintiff returned to live in Melbourne and still lives there. He completed his electrical apprenticeship in Melbourne. The Plaintiff is now employed in security installation work.
Consideration of the Plaintiff’s Submission of a Joint Enterprise.
Before I turn to consider the terms of Section 11 of the Act, I need to briefly refer to the submission made by Mr Birchall, Counsel for the Plaintiff, that the property the subject of the proceedings should be divided equally between the Plaintiff and the Defendant. Mr Birchall submitted that the six year relationship was in some ways a joint enterprise and as a result the property, the subject of the proceedings should be divided equally. It was submitted that if the contributions of both parties were evaluated, the Plaintiff would be entitled to a greater division of property than fifty percent, but the Plaintiff preferred to approach the matter on the basis that the relationship was akin to a joint enterprise and therefore the property should be divided equally.
What that submission overlooks, is that the Act provides the manner in which an application for division of property is to be undertaken by the Courts. As I said earlier, the Court is required, in the first instance, to give consideration to the terms of Section 11 of the Act and then proceed to make an order which is just and equitable. In other words, the Court cannot approach its task by simply looking at an overall picture and make an order based upon that approach. That is the effect of what Mr Birchall urges me to do. The Act, by its terms, requires the Court to approach the application in a structured manner. I reject the submissions by Mr Birchall that I should conclude that the relationship was one akin to a joint enterprise and that accordingly I should divide the property equally between the parties.
I now turn to consider the provisions of Section 11.
Evaluation of the Contributions to the Wattle Street House up to the cessation of the Relationship .
All of the funds for the acquisition and renovation of Wattle Street came from the joint account except the sum of $10,000 deposit paid by the Defendant. I have already mentioned that $248,162 from the Osborne Street sale was paid into that account on 13 November 1998. At that time credit in the account stood at about $24. On 17 November a further $27,797 was deposited in the account. There was no evidence given regarding the source of those funds. Thereafter, apart from the odd payment of interest, the only amounts credited to the account was the sum of $900 each fortnight, which was deposited into the account by the Defendant, save for an unexplained sum of $3,367 deposited on 8 December.
In my opinion, the first step in evaluating the direct financial contributions to Wattle Street is to consider the extent to which the parties made contributions to the Osborne Street proceeds. Those contributions must have a correlation to the purchase price achieved and the net proceeds from the sale which were paid into the joint account. Of course other factors such as market forces must have played a role in the price obtained but for the purpose of this exercise I do not consider these relevant matters. In any event there is no evidence which allows those factors to be evaluated.
I earlier identified the financial contributions made by each of the parties to the acquisition of the Russell Place house and some additional payments contributed to the cost of the renovations. The total amount contributed by the Defendant was approximately $57,000 and by the Plaintiff approximately $21,000.
The bank statements of the joint account tendered in evidence for the period from June 1997 to October 1998 indicate that the sum of approximately $21,000 was paid out of the joint account to meet payments under the mortgage. However, there are some pages missing from the Bank Statements tendered in evidence so that the mortgage payments are likely to be greater than that sum.

Prior to the end of April 1997 the parties were each contributing equally to the joint income as they were both paying into the account their net salaries and their salaries during the time up to the end of April were similar in amounts. During the period to the end of 1997 the Plaintiff contributed his net salary as an apprentice to the account. The Defendant continued to contribute her net salary. In early 1998 there were some further contributions to the joint account by the Plaintiff and thereafter the regular payments ceased save for the odd contribution. However, as I found earlier the Plaintiff was using most of his salary for the common benefit of the relationship through payments to the Visa account and payments of cash to meet various liabilities. It follows from all this that the Defendant’s contributions to the mortgage payments sourced from the joint account were greater than that of the Plaintiff during this period. However, the evidence does not permit me to determine the difference with any precision.
It is clear that there is an imbalance between the direct financial contributions made by the Plaintiff to the acquisition and improvements of Osborne Street when compared to those contributions made by the Defendant. However, as I mentioned earlier, there were non-financial contributions made by both the Plaintiff and the Defendant to the improvement of the property through their work in renovating the house. I have already indicated that it is my view that the contributions to the renovations by the Plaintiff substantially exceeded the contributions by the Defendant.
In my opinion, it is a relevant matter that the renovation project was initiated by the Plaintiff and that it could not have been undertaken without his involvement. He had the background and skills required to ensure a successful completion of the project. Those factors have also contributed in a substantial way to the return achieved on the sale of Osborne Street. Whilst the profit on the whole project has not been identified it is clear that a substantial profit was made. In my opinion these factors also need to be given some weight in assessing the Plaintiff’s contributions to the Osborne Street project.
In my view all of the factors I have mentioned go a long way to redressing the imbalance of direct financial contributions between the Plaintiff and the Defendant but without completely doing so. It is impossible to be more precise than that.
As will be seen shortly, I have allocated the whole of the $248,000 for the purpose of acquiring and renovating Wattle Street and acquiring Russell Place. Therefore, the effect of these findings is that the use of $248,000 in those other projects are contributions made by the Plaintiff and the Defendant equally, save for that part of it which still stands in favour of the Defendant.
I have found that at the time of purchase of the house $140,000 was paid out of the joint account. The cost of contractors which I find was no more than $30,000 was also paid out of the joint account. Furthermore, a total sum of $10,327 for mortgage payments from January 1999 to January 2000 was met from the joint account. This amount consisted of ten payments each of $1,039. I was not told if such payments were for interest only or for principal and interest. Whatever the position is under the mortgage, the mortgage payments can be seen as contributing to the acquisition or conservation of the house.
In my opinion it is appropriate to allocate all of these payments against the proceeds of Osborne Street which had been deposited in the joint account. As a result of my finding regarding the contributions to the production of the $248,000 from Osborne Street, I find that the above expenses of Wattle Street were contributed by the Plaintiff and the Defendant equally.
Further, I find that the Defendant made a direct financial contribution of $10,000 being the deposit paid for the purchase of Wattle Street.
Both the Plaintiff and the Defendant also made non-financial contributions to the Wattle Street property. These contributions were in the nature of work done of a physical nature and a non-physical nature towards the renovations of the premises and some work undertaken in the grounds surrounding the house. I have found the Plaintiff’s contribution exceeded the Defendant’s contribution during the period prior to the termination of the relationship. The Plaintiff also performed some work during the period after the cessation of the relationship and before he vacated the premises. I will return to that matter shortly.
Evaluation of the Contributions to Russell Place Prior to the Cessation of the Relationship.
As I expressed earlier, the Plaintiff and the Defendant had acquired a house at Russell Place, Williamstown in Victoria in April 1999 to renovate and sell. On 23 February 1999, $10,000 was withdrawn from the joint account as a deposit for the purchase of Russell Place. It is not disputed that a sum of $35,100 was withdrawn from the joint account on 29 March 1999 and a sum of about $13,700 was withdrawn on 1 April 1999 both for the purpose of settling on Russell Place.
Even after allocation of some of the Osborne Street proceeds to expenditure on Wattle Street there still remains sufficient of that amount remaining to allocate the above Russell Place expenditure to it. However, as I found earlier the Defendant contributed marginally more to the production of $248,000 than the Plaintiff. The effect of this is that the amounts which were paid towards Russell Place cannot be apportioned equally between the parties. Having said that, I need to consider the deposit in the joint account on 17 November 1998 of $22,797 to which I referred earlier. Its proximity to the settlement of Osborne Street suggests it may have arisen from the sale. However there is simply no evidence to explain the source of the deposit. It is not suggested that it is sourced from the Defendant’s salary. In the absence of any evidence explaining its origin, I am prepared to find that both the Plaintiff and the Defendant were entitled to it jointly. Taking the Plaintiff’s share of that amount in addition to his entitlement out of the balance of the Osborne Street proceeds I am prepared to find that the expenditure for Russell Place to which I have referred was contributed by the Plaintiff and the Defendant equally.
Prior to the cessation of the relationship there were nine mortgage payments each of $1,727, totalling in all the sum of $15,543 made under the mortgage of Russell Place. These payments came from the joint account. As the Defendant was the only one contributing to the joint account at the time then it can be concluded that the Defendant made this direct financial contribution. Furthermore the Defendant contributed a further $14,000 from her own funds to the cost of renovations, prior to the cessation of the relationship. This is a further direct financial contribution by the Defendant to Russell Place.
Both the Plaintiff and the Defendant made non-financial contributions to the improvements of Russell Place. Whilst the Defendant made some contributions, she accepted that most of the work associated with Russell Place was undertaken by the Plaintiff. The Plaintiff managed the project, became involved in resolving issues arising with the local Council and with neighbours and performed some limited physical labour on the house. The Plaintiff was required to travel to Melbourne on a number of occasions in relation to this project. Most of this work was performed prior to the cessation of the relationship, although the Plaintiff made a small contribution to the project after cessation of the relationship. I accept that the Plaintiff contributed a considerable amount of his time in advancing the project, which at one time was going to become a financial burden for both the Plaintiff and the Defendant.
The Defendant’s claim for Direct Financial Contributions to Wattle Street after Cessation of the Relationship.
The Defendant claims for Wattle Street direct financial contributions, amounting to a little over $22,000 for the mortgage payments she made from the time of the cessation of the relationship up to the date of trial. It is not in dispute that the Defendant has made these payments.
I mentioned earlier that the Plaintiff occupied the house for a little under three months after the relationship terminated. Thereafter the Defendant has occupied the premises either alone or jointly with her husband. The total mortgage payments, translates to an amount of a little over $180 per week over the period from the end of March 2000 to the date of Trial.
During that same period the Defendant has incurred other expenses relevant to the Wattle Street premises amounting to about $10,800. Most of these expenses related to the provision of services such as water and energy, insurance and rates and taxes. There was one amount for the installation of built-in wardrobes, which were ordered at the Defendant’s request and without reference to the Plaintiff. There was a further sum for the replacement of the pool pump.
During the period of her occupation, the Defendant did not make any payment to the Plaintiff for her occupation of the house. The Plaintiff made it clear during his evidence that he did not accept the Defendant’s occupation of the house. In my opinion, it is a relevant factor that she has lived in the premises without paying any compensation for her occupation. There is no evidence of the rental which such a dwelling would command. However, payment of a little over $180 per week, for the right to use of premises of this nature would not seem to be an excessive amount. Furthermore, it seems to me, that if the Defendant was enjoying the use of the house then she should bear the costs which arose from that occupation. The Plaintiff has been denied the opportunity of sharing in the rent arising from letting the premises during this period. In my view, the mortgage payments the Defendant made, together with the other charges relevant to her occupation of the premises should be balanced against the fact that she has occupied the premises without any payments to the Plaintiff during this period. Therefore, I am not prepared to accept her claim that her mortgage payments should be included as a direct financial contribution to the Wattle Street house.
Financial Contribution by the Defendant after Separation to Russell Place.
After cessation of the relationship the Defendant continued to personally meet the payments of the mortgage of Russell Place until it was sold. The total of these payments was $11,400.
Furthermore, I am satisfied that payments totalling the sum of approximately $24,000 was paid out of the joint account after cessation of the relationship to meet debts owed to the project manager, the builder and suppliers. As the only funds remaining in the joint account at that time were sourced from the Defendant’s contributions to the account I find that such payments were made by the Defendant solely.
Whilst there were mortgage payments and renovation payments made by the Defendant after the cessation of the relationship, in my view, they are direct financial contributions to the conservation and improvement of Russell Place pursuant to Section 11(1)(a) of the Act. In any event, if I am wrong in that conclusion, then they are relevant matters to take into account as provided by Section 11(1)(d) of the Act and the Defendant should be given credit for them.
Evaluation of other contributions made by the Plaintiff and the Defendant.
During the period of the relationship, the Defendant did most of the cooking. She also paid the household accounts and mortgage payments. I accept the Defendant’s evidence that she did the majority of the household chores, although she also had the assistance of a cleaner from time to time. In making this finding, I acknowledge that the Plaintiff engaged in household work such as the washing and vacuuming from time to time. I find that the shopping was done by both of them.
The Plaintiff, as I stated earlier, had a son called James. At the time the relationship commenced he was about five years of age. James would come to Melbourne every seven or eight weeks and stay with the Plaintiff and the Defendant. He would usually stay for a weekend. Occasionally he would come in his school holidays and stay for a week. When he stayed with the Plaintiff and the Defendant, they both cared for him. After the Plaintiff and the Defendant settled in Adelaide in late 1998, James would stay with the Plaintiff and the Defendant every second weekend from the Friday night to the Sunday night. Occasionally he would stay a night during the week. When James was about six years of age both the Plaintiff and the Defendant took him on a ten day holiday to Fiji.
I have found that the Plaintiff continued to contribute to the common welfare of the relationship after he commenced his apprenticeship. Clearly, his capacity to contribute was not as great as the Defendant because of his reduced income. It has not been suggested that the Plaintiff and the Defendant lived an extravagant lifestyle. In those circumstances the fact that his capacity to contribute was less than that of the Defendant is of less impact than if they lived a more extravagant lifestyle where the Plaintiff would have needed to rely more on the contributions of the Defendant.
The Plaintiff’s capacity to contribute to the common benefit of the relationship was further reduced by his reduction in income when he transferred his apprenticeship to an Adelaide employer. However, in considering this, in my opinion, it is relevant to take into account that it was the Defendant who wished to return to Adelaide. Not only did the Plaintiff see his apprenticeship wage diminish but he also was required to close his two small businesses, thus, losing the income generated from each of the businesses.
For the purpose of their daily living, the Plaintiff and the Defendant operated a Visa card. The card was in the Defendant’s name and the Plaintiff had a second user card. This card was used by both of them for daily living expenditure. At the end of the relationship, the Plaintiff paid the amount outstanding on the Visa card of $5,231. This was paid after cessation of the relationship. It related to expenditure, some of which occurred prior to the cessation of the relationship and some which occurred after. I was not told which expenditure on the Visa card applied to the joint interests of the parties or their separate interests. It is possible to infer that some of the amounts on the card, related to the Plaintiff but that is as far as the matter can be taken. All that can be done is to take into account that some expenditure was for the benefit of the Plaintiff and that the Defendant made that contribution for his benefit. In 1999 the Defendant provided medical health cover for the Plaintiff and his son James, through a family cover which was included in her employment package. This is another contribution which needs to be taken into account.
The Plaintiff’s Occupation of Wattle Street between January and March 2000.
After the Defendant vacated the premises in early January 2000 the Plaintiff continued to reside in the premises until late March. He did not make any contributions towards the payment of the mortgage except for the sum of $372 paid in January. The Defendant made these mortgage payments during this period. The Defendant seeks to have this period of rent free accommodation placed in the scales. I agree that it needs to be taken into account in determining the final order. However, as a factor also to be placed in the scales is that during this period the Plaintiff laid lawn to the front and side of the house and installed a watering system.
Miscellaneous Matters.
(i) Loan to Plaintiff for purchase of motor vehicle.
In 1998 the Plaintiff’s motor vehicle was stolen. At that time the Defendant was using a motor vehicle supplied by her employer. The Defendant lent the Plaintiff $10,000 in order that he could purchase a Mitsubishi Magna motor vehicle to replace his stolen motor vehicle. The loan was to remain until the Plaintiff received payment from his insurance company for the stolen vehicle. The Plaintiff repaid $5,000 but it is the Defendant’s case that the balance of the debt has not been repaid. The Defendant does not seek repayment of the debt but says that the amount is a contribution made to the Plaintiff.
The Plaintiff gave evidence that he repaid the debt by contributions made to Osborne Street and Wattle Street. I found his evidence relating to payment of the debt unsatisfactory. He did not suggest that there had been an agreement between the Defendant and himself which enabled him to repay the amount in the manner he described.
I find that the balance of the debt has not been repaid and that as the Defendant has not sought to have it repaid it is a contribution made to the Plaintiff.
(ii) Purchase of Shares by the Defendant
In December 1999, the Defendant acquired the shares of two separate companies who were listed on the Stock Exchange. She sold the shares soon after she purchased them. The Defendant used her own funds to acquire the shares. Following the sale of both parcels of shares she received a total sum of nearly $10,000 which included her initial outlay on each parcel of shares. The Defendant earned a substantial gross profit on each transaction.
It was the submission on behalf of the Plaintiff that as the two parcels of shares were bought and sold before the relationship ended then they were assets of the relationship and fall to be divided between the parties. There are two responses to that submission. The first is that the shares were not property in existence at the time of trial nor were they property at the end of the relationship. Secondly, the Plaintiff and the Defendant had laid down the ground rules for these proceedings by agreeing that the only property the subject of the application is the house at Wattle Street and the funds held on deposit. As a result the shares are not property which is the subject of the application for division. Accordingly, I reject the Plaintiff’s submission that the shares or their proceeds are relevant to these proceedings.
Consideration of the Order to be Made.
Having completed a consideration of matters relevant to Section 11 of the Act it is now necessary to determine what order is to be made, bearing in mind that any order for division of property must be determined in a way that is just and equitable. In considering the order to be made I will refer to only some of the factors which need to be considered. It is not necessary to again refer to all of the matters I have considered in dealing with Section 11. For the purpose of reaching a final determination I have taken into account all of the matters I have referred to as being relevant under that Section.
With respect to the Wattle Street house I have found that nearly all the direct financial contributions were made equally save for the sum of $10,000 which was paid by the Defendant as a deposit. I also have concluded that the contributions by the Plaintiff to the renovations of Wattle Street exceeded that of the Defendant.
There was a substantial difference between the financial contributions for Russell Place in favour of the Defendant. The non-financial contributions to the Russell Place project by the Plaintiff needs to be considered alongside the imbalance of financial contributions. When that is done the imbalance is diminished but, in my view there still remains a significant imbalance. In undertaking this exercise of evaluating the Plaintiff’s non-financial contributions against the imbalance of financial contributions it needs to be emphasised that it is not an arithmetical exercise. All that can be done is consider the contributions by the Plaintiff and the Defendant in an overall sense.

The Defendant, in the period from 9 May 1997 to December 1999, contributed more to the common benefit of the relationship. This was brought about by her greater income. However, in considering this contribution there needs to be taken into account that the reason for the reduction in the Plaintiff’s contribution to their common welfare after August 1998 was due to the Defendant’s wish to return to Adelaide. The Plaintiff’s income reduced as a result of his return to Adelaide. Furthermore consideration needs to be given to the fact that the Plaintiff’s capacity to contribute was further reduced by the loss of income of the two small businesses. In my view it is also relevant to consider that the Plaintiff was required to close those two businesses as a result of the Defendant’s decision to return to Adelaide.
A further matter to take into account in making a final determination is the contributions to the functioning of the household by both parties and the Defendant’s contributions to the welfare of the Plaintiff’s son, James.
There are other matters to which I have referred earlier in the Reasons to which consideration needs to be given. However, in the end this is a case where a global judgment needs to be made in reaching the final determination. In my view a division of the property, in a way that is just and equitable, is to apportion forty percent to the Plaintiff and sixty percent to the Defendant.
The Manner of Implementing the Order.
Earlier in these Reasons I said that the Plaintiff seeks an order that the Wattle Street property be sold and the net proceeds be apportioned in accordance with the terms of the Order made by the Court. On the other hand, the Defendant indicated that she wished to retain the house. The Defendant, together with her husband and small child are living in the house. The submissions, made on behalf of the Plaintiff was that valuation of the property was just that, a valuation. It was submitted by Mr Birchall that to do justice and equity between the parties, particularly in view of the strength of the property market that the house should be sold.
I have already referred to the evidence of the valuers regarding the buoyant state of the real estate market in the Malvern area. In addition to the valuation evidence the Plaintiff called Mr Richard Opie, a real estate salesperson, who had considerable experience in selling residential homes in the eastern suburbs, including the Malvern area.
Mr Opie inspected the house in April 2002. It was his evidence, which I accept, that it is an appealing house and would be of interest to people who are likely to live in it for some time, then demolish the lean-to and build on to the front section. He said there was demand for houses in Malvern but there was very little stock to meet that demand. Mr Opie said Malvern was a highly regarded area. It was his view that there would be demand for this house if it was placed on the market. Mr Opie expressed the opinion that, to obtain the optimum price the best method of sale is sale by auction. He further stated that the property needed some expenditure on it to ensure that it is appropriately presented for sale. His opinion was similar to the valuers that the market was quite buoyant.
In my opinion the order for division of property should include an order that the Wattle Street house be sold and the net proceeds be divided in the proportions I have indicated. I consider that is the way to ensure that order is a just and equitable one. I am also of the opinion that, in the first instance, sale should be by public auction.
There is one final matter which I wish to raise. During the course of the Osborne Street renovations, the Plaintiff and the Defendant borrowed the sum of $4,500 from the Plaintiff’s mother. The money was expended on the renovations of Osborne Street. There remains $3,000 owing to the Plaintiff’s mother from the original debt of $4,500. Both parties agree that the $3,000 should be repaid. It will be necessary to incorporate in the final order an order for repayment of this amount.
As a result of these findings I will hear the parties on the terms of the Order. I will also hear the parties on the question of costs.

[2002] SADC 168

13 December 2002