W, SF v B, A
[2013] SADC 163
•4 December 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
W, SF v B, A
[2013] SADC 163
Judgment of His Honour Judge Beazley
4 December 2013
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
Domestic partnership of at least five years duration commencing in late April 2004 and ending in the month of April 2010 - parties respectively had nominal assets at commencement of the relationship save for separate bank accounts and superannuation entitlements - no children from the relationship - house property purchased jointly, with unequal contributions to the deposit, in January 2006 - the defendant left the residence in July 2007, the plaintiff continued to reside in the house property as the sole occupant until approximately June 2008 - no rent paid by the plaintiff to the defendant - parties resume joint occupation of the residence in June 2008 - parties separate finally in April 2010 - the defendant continued to reside in residence from April 2010 to April 2011 without contributing to mortgage instalments nor payment of occupation rent to the plaintiff - plaintiff continued to pay the mortgage instalments after separation - application by plaintiff for an adjustment of property interest - defendant ordered to vacate the residence on 6 April 2011 - residence sold on 19 March 2012 - defendant filed neither a defence nor affidavits - parties remained in employment and in good health - whether occupation rent payable by plaintiff during period July 2007 to June 2008 - whether occupation rent payable by defendant during period April 2010 to April 2011 - dicta in W v D (2012) SASR 61 queried.
HELD: That parties were, at all relevant times, in a domestic partnership. The plaintiff is entitled to a credit of $5,200 for occupation rent during the defendant's sole occupation of the house property in 2010 and 2011.
EVIDENCE
Dearth of evidence as to the value of certain assets at the commencement of the relationship - necessary for the Court "to do its best" even if the evidence does not enable precise quantification. Court obliged to finally resolve all questions about the division of property and avoid further proceedings between the parties.
DIVISION OF PROPERTY
Approach to property adjustment - evaluation of contributions - application of principles in section 11 of the Domestic Partners Property Act 1996 - values of assets fixed as at date of judgment.
Held: It is just and equitable that orders be made for the division of property on an equal basis subject to a credit to the plaintiff in the sum of $8,276.53 reflecting the additional payments made by the plaintiff.
The division of property accordingly is that:
1. Each party notionally receive one half of the total assets of the domestic partnership, valued at $58,512.78.
1.1 That from the defendant's share of $29,256.39, the sum of $8,276.53 be deducted and credited to the plaintiff's share.
1.2 That the plaintiff's adjusted share of $37,532.92, be reduced to $16,532.92 following the transfer of ownership of the boat asset; and the defendant's adjusted share of $20,979.87 be reduced to $13,979.87 following the transfer of ownership of the motor vehicle asset.
1.3 That the respective sums of $16,532.92 to the plaintiff and $13,979.87 to the defendant be paid from funds held in the Solicitors Trust Account.
2. The question of costs be reserved for consideration.
Domestic Partners Property Act 1996 ss 9, 10, 11 and 12; Family Relationships Act 1975 ss 11, 11A and 11B, referred to.
W v D (2012) 115 SASR 61; F, BA v D, BH [2010] SADC 92; Briggs v Jones [2013] SADC 42; BUTT: "Co-owner's claim for occupation fee" [2013] 87 ALJ 374; Barel v Segal (No.2) [2012] NSWSC 1054; Forgeard v Shanahan (1994) 35 NSWLR 206; Payne v Rowe [2012] NSWSC 685; H v D (2005) 34 Fam LR 35; Hogg v Roberts (2003) 87 SASR 248; Arnold v Dalton (2002) 84 SASR 482; Bilous v Mudaliar (2006) NSWLR 615; Manns v Kennedy [2007] 37 Fam LR 489; Baker v Towle (2008) NSWCA 73; Karpathiou v Clemente [2008] SASC 316; M, DA v P, N (2008) 260 LSJS 55; Smith v Gould [2012] VSC 461; Paino v Paino [2008] NSWCA 276; Fink v Fink (1946) 74 CLR 127; Ramsay v Ramsay (1997) 137 FLR 40, considered.
W, SF v B, A
[2013] SADC 163Introduction
This is an application by S. F. W. (‘the Plaintiff’), seeking orders against A. B. (‘the Defendant’), inter alia, for a declaration, pursuant to the Family Relationships Act 1975 (SA), that the Plaintiff and Defendant were domestic partners of one another; and, pursuant to s 10 of the Domestic Partners Property Act 1996 (SA) (‘the Act’), for a division, as between them of the property of the parties in a way that is just and equitable.
The parties were plainly in a domestic partnership, as defined in s 3 of the Act. I will make a declaration to that effect. All of the other preconditions to this Court having jurisdiction to make orders for such a division of property as set out in s 9 of the Act have been satisfied.
It was most unfortunate that the proceedings were commenced in this matter, and that indeed, the parties elected to proceed to trial.
Each of the parties, respectively, had nominal assets as at the commencement of their relationship, save for their separate bank accounts and superannuation entitlements.
The trial commenced on 12 September 2013. By that time the parties’ home at Huntfield Heights had been sold, and the parties had each removed items of furniture and other items of personal property from that home.
As at the date of trial, there were only some minor assets left. There were no children from the relationship. Each remained in employment and in good health.
All attempts to resolve the outstanding issues between themselves had proved futile.
In W v D[1], Kourakis CJ, in a different context, explained the difficulties confronting parties who cannot resolve their financial affairs, saying:
Difficult legal issues arise when a domestic relationship between co-owners breaks down with one of the co-owners leaving the residence. If the parties fail to reach an agreement on the disentanglement of their property and financial relationship, the taking of accounts of their respective contributions ... is problematic. In particular accounting for the benefit to the partner who remains in the home of his or her occupation and making adjustments for the costs of improvements, rates and taxes, and mortgage payments presents real difficulties.
[1] (2012) 115 SASR 61 at 71.
The Nature of the Plaintiff’s Claim
The parties did not file pleadings in the subject proceedings. The application was commenced by the plaintiff on 31 March 2011. It was accompanied by an affidavit sworn by her on the same date.
She deposed that the parties had commenced a domestic partnership in April 2004, and that it had been terminated in April 2010.
She identified the assets of the parties as at the date of termination of the relationship as being:
· The equity in the Huntfield Heights property, subject to a mortgage.
· The equity in a Mitsubishi Magna motor vehicle, subject to a loan.
· The equity in a Haines Hunter 495 boat, subject to a loan.
· The contents of the Huntfield Heights home.
· A Honda ‘Postie’ motor bike.
· A dirt motor bike.
· Superannuation and cash in their respective personal accounts.
The principal asset was the residential property at Huntfield Heights, (‘the house property’) which had been purchased and registered jointly in the respective names of the parties, on 19 December 2005.
The plaintiff had left the house property in April 2010. She deposed that she continued to pay the mortgage payments without any contribution from the defendant, notwithstanding that he remained in sole occupation.
The plaintiff deposed in that affidavit to having made ‘direct financial contributions well in excess of those made by the defendant’. She deposed that ‘joint funds’, without specifying the actual contribution by each party, were used to pay the deposit for the purchase of the house property with the balance sourced from a loan secured by mortgage.
At the time of the commencement of the proceedings, the plaintiff sought, by way of interim relief, that the house property be sold. It was an urgent application as the plaintiff was concerned that the mortgagee would seek an order for possession and sale. At this time there had been no exchange of relevant documents, and there was insufficient material disclosed in that affidavit to ‘carefully track income and expenditure, or contributions made and benefits received by’ both parties.[2]
[2] Hogg v Roberts (2003) 87 SASR 248 at [17].
The plaintiff later explained in evidence that, when she moved from the house property in April 2010, most of her ‘paperwork’ had been left behind. She was therefore left to remember, as best she could, what payments had been made. She was also restricted in her ability to estimate the value of the assets as at the time of termination.[3]
[3] T30.
On 6 April 2011, a Judge of this Court ordered that the house property be sold. The order of the Court made provision for the proceeds of that sale.
Subsequently when the plaintiff gave oral evidence at the trial, she conceded that the defendant had in fact contributed a greater portion of the deposit than she had, and that he had contributed greater sums to the relationship than that to which she had deposed in her affidavits.
No answering affidavit was filed by or on behalf of the defendant at any time in the proceedings. He had not exchanged any documents with the plaintiff’s solicitors. He had elected to be self represented on 28 February 2013.
It is trite that parties to proceedings under the Act are obliged to make full and frank disclosure of all relevant financial circumstances.[4] I have no doubt that the defendant retains some bitterness towards the plaintiff in consequence of the breakup of the relationship, and the financial difficulties caused to him by having to vacate the house property on short notice.[5]
[4] Hayes v Marquis [2008] NSWCA 10.
[5] See T98-102.
He clearly blamed the plaintiff for the breakdown in the relationship.[6]
[6] T97; 100 & 102.
I make it abundantly clear that ‘blame’ or ‘fault’ for the breakdown of the subject relationship is entirely irrelevant to the exercise of the discretion to make an order for the division of property.7
7 Hogg v Robert (2003) 87 SASR 248 at [15]
Credibility of Witnesses
It is appropriate that I mention the credibility of the witnesses. The parties were the only witnesses to give oral evidence. The plaintiff was represented by counsel, Ms Clark. The defendant represented himself. I initially had some reservations about the defendant’s evidence because of his failure to provide discovery of his documents. He had failed to comply with orders that he file an answering affidavit. He had, through his solicitors, also declined a reasonable request, from the plaintiff, that the proceeds of sale of the house property be placed in an interest bearing account.
Those failures or omissions had placed the plaintiff and her counsel in a difficult position at the trial. The defendant would, out of the blue, refer to some payment made by him, which could not be adequately tested.
Very properly, the plaintiff’s counsel met these difficulties as best she could, to avoid further costs being incurred by the parties by an adjournment.
The defendant’s antipathy towards the plaintiff was evident from his final address when he stated, for the first time, without any documentation:
When [we] met I just got a payout from Mitsubishi of $25,000 that I exhausted, and if you want to check our bank accounts – she moved in with a suitcase and $500 and I moved in with $25,000. I exhausted all that money in the relationship, dinners and clothing.
Upon reflection, and despite his bitterness, I have accepted that he was an honest witness. He clearly faced difficulties in representing himself, and was unfamiliar with the rules of evidence. Ultimately, I accept that both parties were honest witnesses in that each did his or her best to recall details of their relationship, and their contributions as they perceived them to be. Having regard to the lack of documentation, I was left to reflect upon the reliability, as opposed to the honesty of some of their respective evidence.
The principal disputes
As I have noted, each of the parties had nominal assets as at the commencement of the relationship. Neither party tendered any evidence as to their respective separate bank account credits, nor as to their superannuation entitlements. The contents of the house property had already been appropriated, by them.
The principal disputes involved the quantum of each party’s respective contribution to the expenses of the relationship, and their respective entitlements to the relatively small sum of $30,512.79 held in a Solicitors Trust account. This sum represented the balance of the proceeds of sale of the house property and was held on trust in joint names.
It was not until the respective parties had completed their evidence that it became clear that there had been a general misunderstanding between them as to their respective contributions to the assets of the relationship.
In the end, there were few other disputes between the parties. One significant issue involved the ‘vexed’ question as to whether any allowance ought to be made by way of an occupation fee, firstly by the plaintiff who had been in sole occupation of the residence from July 2007 to June 2008, and secondly, by the defendant who had been in sole occupation thereof from the date of termination of the relationship in the month of April 2010 until he was obliged to leave in April 2011 pursuant to an order of the Court.
Other, less significant issues, included whether the defendant had, at any relevant time, possession of a ‘dirt bike’, as deposed to by the plaintiff; and the assessment of the financial and non-financial contributions by each party respectively to the acquisition and maintenance of the relevant assets of the parties.
There was a dearth of evidence as to the value of some of the assets. Some of the values ‘estimated’ by the plaintiff, particularly in her affidavit, were objectively of little assistance to the Court.
By way of example, when cross-examined about the value that she had ascribed to the disputed ‘dirt bike’ as being $4,000, the plaintiff conceded: ‘To be honest I don’t have a good true value of what that would have been worth ... I didn’t know what type of bike it really was’.
I do however accept that there is no need to obtain precise valuations of all of the assets. I will simply have to do the best I can on the evidence.
Procedural matters and the conduct of the Trial
On 4 December 2012, a Master of the Court made an order that the action continue without pleadings but on affidavits pursuant to R 6 DCR 96.
In addition to her affidavit sworn earlier on 31 March 2011,[7] the plaintiff filed another affidavit which had been sworn on 19 February 2013.[8]
[7] Exhibit P1.
[8] Exhibit P2.
Two affidavits of her solicitor Natalie Jennifer Abela sworn respectively on 20 February 2013,[9] and 30 August 2013[10] were also filed by her.
[9] Exhibit P3.
[10] Exhibit P4.
On 28 February 2013 the defendant’s retainer with his solicitors was terminated, and he became self represented. He did not file any answering affidavit nor any list of documents despite orders to do so having been made on 28 February 2013. The time for compliance with those orders was extended on 25 July 2013 and 29 August 2013.
At the hearing, as is clear from the transcript, I used my best endeavours to take the Defendant through the matters which would be dealt with at the trial. I invited him to tell me as to whether in fact he disputed any of the matters which were set out in the various affidavits filed by the Plaintiff and her solicitor.
From time to time he appeared to make certain concessions as to which assets ought be excluded from the assets to be apportioned, such as the moneys held in each respective personal bank account. However in his final address the defendant pressed the submission that his personal funds had been exhausted in the relationship.
In her opening, counsel for the plaintiff noted that the plaintiff maintained that she had contributed funds to the relationship far in excess of that by the defendant. The plaintiff sought the payment to her of the total of the funds in the trust account, and ownership of the boat.
She submitted that it was just and equitable that the defendant retains only the motor vehicle, the Honda motor bike, and the ‘dirt’ motor bike.
Finally, she submitted that each party should retain his or her own superannuation; bank accounts and such of the household items taken respectively by them prior to the settlement of the house property. She also sought a contribution from the defendant representing one half of the interest lost in consequence of his refusal to authorise the investment in an interest bearing account.
The defendant submitted that the boat and motor vehicle should be sold, and that the proceeds of those sales, together with the proceeds of the sale of the house property should be divided equally.
He indicated that the Honda motor bike was purchased solely by him, from his own funds, and should not form part of the assets. He said that he did not possess a dirt bike at any time during the relationship.
Chronology
I set out the matters which were either agreed by the parties or not the subject of dispute on the evidence.
The plaintiff and the defendant commenced their relationship as domestic partners in late April 2004. The plaintiff was aged 19 years, and the defendant was aged 25 years. Both were employed, and remained in employment throughout the relationship.
Each party had nominal assets prior to the relationship save for their separate bank and superannuation accounts.
I readily accept that at the start of their relationship the defendant was earning considerably more per annum than the plaintiff. He was earning approximately $55,000 to $60,000 per annum.[11] He estimated that the plaintiff was earning $38,000 per annum. At or about the commencement of the relationship the defendant received a payout from a previous employer in the sum of $25,000.[12] There is a dearth of evidence as to what had happened to the payout sum, save that the defendant said that it was used for entertainment and other general expenses in the relationship.
[11] T42.
[12] T101.
The defendant had purchased the Honda Postie motor bike prior to the commencement of the relationship.
On or about 19 December 2005, the house property was purchased, in the joint names of the parties, for the contract price of $200,000.[13]
[13] Casebook p 77.
The defendant paid the sum of $8,930.98 towards the deposit, while the plaintiff paid the sum of $2,000.
The purchase was otherwise financed by a loan, in joint names, granted by Aussie Home Loans, in the sum of $189,182.50, which loan was secured by mortgage over the property. The fortnightly instalments pursuant to that mortgage fluctuated over the years from approximately $520 to $658. The mortgage instalments were paid by the plaintiff.
In or about the month of June 2006, a Mitsubishi Magna motor vehicle was purchased in the joint names of the parties for the sum of $23,000. That purchase was financed by a personal loan from the People’s Choice Credit Union which was in their joint names. The instalments of $431.22 per month were paid by the defendant.
Between July 2007 and June 2008 the plaintiff resided alone at the house property. The defendant had moved out for that period, although he returned in June 2008 following a reconciliation. The plaintiff continued to pay the mortgage instalments during the defendant’s absence.
In or about the month of June 2008, the parties purchased the Haines Hunter boat and trailer for the sum of $35,000 in joint names. It was financed from equity in the house, subject to the mortgage with Aussie Home Loans. The instalments of $109.39 per fortnight were paid by the plaintiff.
In the month of April 2010 the parties irrevocably terminated their relationship. The plaintiff moved out of the house property and occupied a rental property, for which she paid $100 per week as rent. She continued to pay the mortgage instalments on the house property; the insurance on the house property, and the instalments on the boat loan.
The defendant remained in occupation of the house property.
At or about the time of termination, the plaintiff’s income was approximately the sum of $56,000 plus superannuation per annum, while the defendant’s income remained at $55,000 to $60,000 plus superannuation per annum.
On 6 April 2011, the plaintiff’s application for the sale of the house property was heard by a Judge of this Court. Both parties were represented, at that time, by counsel. The Court ordered that the house property be sold. The relevant terms of that order were as follows:
· That the defendant vacates the house property within 14 days.
· That the proceeds of sale be applied:
·Firstly, to discharge the home loan.
·Secondly, to pay the fees incurred in selling the property.
·Thirdly, to pay for repairs, maintenance and upkeep.
·Fourthly, to discharge the boat loan. (my emphasis)
·That any surplus be placed in the trust account of Cowell Clarke Commercial Lawyers for investment in an interest bearing deposit pending the determination of the action. (my emphasis)
The defendant remained solely in occupation of the house property from April 2010 to April 2011, when he was obliged to vacate it. In consequence of the defendant’s failure to pay any mortgage instalments post termination, the parties jointly incurred a fee of $800.00
On 12 July 2011, Aussie Home Loans granted ‘a repayment break’ for three months in respect of both the home loan and the boat loan.
In December 2011 the plaintiff consented to an order that she pay to People’s Choice Credit Union the balance due on a credit card.
On 20 January 2012 the defendant paid the balance outstanding on the motor vehicle loan in the sum of $4,771.96 to the People’s Choice Credit Union.[14]
[14] Exhibit D10.
The parties each took household items and other chattels left on the house property. Each accepts that they obtained 50% of those items.[15]
[15] As to plaintiff T31. As to defendant T51-52.
A contract was entered into for the sale of the house property for the sum of $265,000.
On 11 March 2012 the plaintiff took possession of the boat, without seeking the approval of the defendant.
On 19 March 2012 the balance of the house mortgage with Aussie Home Loans, then standing at $188,316.71, was discharged from the settlement funds.
On the same day the balance of the boat loan then standing at $34,512.61 was discharged from the settlement funds.
On 19 March 2012 the balance of the settlement funds, totalling just $29,870.79, was paid into the trust account of Cowell Clarke. By 4 April 2012, following the receipt of a credit for fees, the account stood at $30,512.79 (‘the funds’).
By letter dated 21 March 2012 to the defendant’s solicitors, the plaintiff’s solicitor enclosed a form to be signed by the defendant authorising the investment of the funds in an interest bearing account.
By letter, in response, dated 23 March 2012, the defendant’s solicitors stated that ‘Our client is not yet persuaded to have the monies invested and is considering his position’.
Accordingly, those monies were not placed into an interest bearing account, despite the terms of the order of the Court, made on 6 April 2011, and have accrued no interest since March 2012.
Remedy under the Act
On 1 July 2010 the Parliament referred its powers in respect of the breakdown of domestic partnerships to the Commonwealth Parliament.[16] That referral, however, did not apply to such relationships which had broken down prior to 1 July 2010. As I have found that the subject relationship was terminated in the month of April 2010, the (State) Act continues to apply.
[16] The Commonwealth Powers (De Facto Relationships) Act (SA) (2009).
Pursuant to s 9(1) of the Act, upon the termination of a domestic partnership, either of the domestic partners may apply to the Court for the division of property. I am satisfied that the pre-conditions for such an application, as set out in s 9(2) and (3) of the Act, are satisfied in this case.
Section 10 of the Act provides:
(1)On an application for the division of property after the end of a domestic partnership, the court may make such orders as it considers necessary to divide between the domestic partners the property of either or both partners in a way that is just and equitable.
(2) For example, the court may make orders for –
(a) the transfer of property from one domestic partner to the other; or
(b) the sale of property and the division of the net proceeds between the domestic partners in proportions decided by the court; or
(c) the payment by one domestic partner of a lump sum to the other.
Section 11 relevantly provides:
(1)In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court –
(a) must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to –
(i)the acquisition, conservation or improvement of property of either or both partners; or
(ii) the financial resources of either or both partners; and
(b) must consider the contributions (including homemaking or parenting contributions) made by either of the domestic partners to the other partner or to children of the partners or either of them; and
(c) must have regard to the terms of any relevant domestic partnership agreement; and
(d) may have regard to other relevant matters.
Section 12 relevantly provides:
…. the court must (as far as practicable) finally resolve questions about the division of property between the domestic partners to avoid further proceedings between them.
The Principles of Law
In Hogg v Roberts,[17] Doyle CJ (with whose reasons Perry and Gray JJ agreed)[18] made a number of observations as to the approach to be taken under s 11, of the predecessor De Facto Relationships Act, saying that:[19]
My understanding of the Act is that the requirement to make an order that is ‘just and equitable’ does not give rise to a general and unfettered discretion. First of all, the court is dividing property, not settling all outstanding financial issues as between the partners. Secondly, s 11(1) indicates that the contributions referred to in that provision are important considerations in deciding what is just and equitable. The initial and primary focus must be on the property in question, contributions to that property, contributions to financial resources and then contributions by one party to the other and to the children.
However, the obligation under s 11(1)(d) to have regard ‘to other relevant matters’ means that contributions are not the only matter for consideration. It is to be noted that the court must have regard to ‘relevant matters’. I think that must mean matters relevant to a just and equitable division of property. The provision is not as wide as, for example, a direction to have regard to such matters as the court sees fit.
[17] (2003) 87 SASR 248. See also M, DA v P, N [2008] SADC 169.
[18] [11]-[19] of the Chief Justice’s judgment were cited with approval by Gray J (with whose reasons Sulan and David JJ agreed) in Karpathiou v Clemente [2008] SASC 316 at [31].
[19] At [11]-[12].
The Chief Justice stressed that it was not the role of the Court to use the division of property to remedy any grievances or to compensate a party for disappointed or unfulfilled expectations. The primary focus of the Court is directed to the property and the other matters identified in s 11(1) of the Act. The matters that are likely to be relevant include the length of the relationship and the immediate needs of the parties. His Honour said that the Court, in this exercise, is not dividing property with a view to providing, for example, for the continuing maintenance of the parties, after taking into account their future financial prospects. His Honour stressed that the Court is not to be concerned with attributing fault for the breakdown of the relationship, and that the contribution as homemaker is not to be treated as inferior to material or financial contributions.
The appropriate way to proceed,[20] in the subject case, is to:
·identify the assets of the parties, and assess their value;
·determine whether any and, if so, what contributions of the type identified in s 11 of the Act had been made by each partner;
·determine the extent to which, if at all, the contributions of the plaintiff have already been sufficiently recognised and compensated for;
·identify and consider any other ‘relevant matters’; and then
·make the appropriate adjustment.
[20] Compare Parker v Parker (1993) 16 Fam LR 863 at 870 per Young J.
Fundamentally, however, the object of such an exercise is to effect a division of property between the parties in a manner which is ‘just and equitable’. As his Honour Judge Smith noted in Love v Chidley,[21] the discretion in s 10 of the Act involves a holistic value judgment.
The adoption of a ‘global’ approach
[21] (2002) 219 LSJS 287 at [138]
One of the issues to be determined is whether the Court should adopt a ‘global’ or ‘asset – by – asset’ approach to the division of property. Whatever approach is adopted, it is necessary to know how such assets were acquired. In Norbis v Norbis (1986) 161 CLR 513, referring to the approach under the Family Law Act 1975 (Cth), Mason and Deane JJ at p523 said:
For ease of comparison and calculation it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, i.e. on a global or, alternatively, on an "asset-by-asset" basis. Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient. It follows that the Full Court is quite entitled to prescribe that approach as a guideline in order to promote uniformity of approach within the Court. In saying this we are not to be understood as denying the legitimacy of the trial judge's ascertainment in the first instance of the financial contributions of the parties by reference to particular assets. It is difficult to conceive how the trial judge in many cases could otherwise take account of such contributions as he is required to by s 79(4)(a) of the Act. In this respect we agree with the comment of Nygh J. in G and G 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.
Various methods have been employed to ensure that those initial assets are not undervalued at least in a relationship of short duration. In Howlett v Neilson (2005) 33 Fam LR 304 the Court determined that it would be just and equitable to return to each party his or her initial contribution valued as at the date of commencement of the relationship, and divide the balance equally.
I turn now to the identification and evaluation of the assets of the relationship.
In Arnold v Dalton, Bleby J. made it clear that there was a limit to the extent to which a Judge can properly pursue every minor detail. He explained that “doing justice and equity between parties does not require the examination in minute detail of the value and disposal of every item of personal property”.[22]
[22] (2002) 84 SASR 482 at [25]
I turn now to the matters identified in Hogg v Roberts, supra.
Identification and Valuation of Assets
In each case I will endeavour to fix a value as at the date of trial.[23]
·Proceeds of the sale of the house property
[23] See M v P (2008) 260 LSJS 55 and F v R [2012] SADC 84.
As at the date of trial, the sum of $30,512.79, held in a Solicitor’s Trust account, represents the balance of the proceeds of the sale of the house property after the discharge of the house mortgage and the boat loan.
·The contents of the house property
The plaintiff had identified various items of personal property in Exhibit ‘SFW2’ to her affidavit sworn on 31 March 2011. There was no admissible evidence as to the value of those contents. The plaintiff simply suggested an ‘estimate’ of $50,000.
I note that each party took household items and other chattels which had been left at the house property. Each party seemed to concede that they had received an equal apportionment of those items.[24] As a consequence I will not include any sum for those contents, in the pool of assets for either party.
·Motor Vehicle
[24] See T. p31 and 51-52.
The parties had jointly purchased a Mitsubishi Magna motor vehicle for the approximate sum of $23,000.00 in or about the month of June 2006.
It was financed by a personal loan taken out in joint names.
In her initial affidavit the plaintiff estimated its value as $15,000. At trial the plaintiff tendered a ‘Dealer’s Red Book General Valuation’ in the sum of $8,940, based upon an assumption as to the reasonable condition of the vehicle.
The defendant estimated the vehicle to be ‘worth approximately in between $5,000 and $7,000’.[25] He also deposed to the motor vehicle being unregistered, so that there would be costs associated with it being registered.
[25] T. p 38.
In my opinion it is appropriate to fix the value of the motor vehicle as at the date of trial. The plaintiff’s counsel very properly conceded that a value of $7,000 as at trial could not be disputed by the plaintiff.[26]
[26] T. p 75.
Doing the best I can on the state of the evidence, I fix a value for the motor vehicle in the sum of $7,000.
·Boat
The parties had jointly purchased a Haines Hunter 495 Breeze Boat for the sum of $35,000 in the month of June 2008. It was financed by a loan in joint names, secured by the house mortgage. The balance of the boat loan then standing at $34,512.61 was discharged from the settlement funds on 20 March 2012.
At trial the plaintiff tendered a valuation,[27] which expressed the retail price, following a motor service, as at the date of trial as being the sum of $24,900.00; while the wholesale value was $21,000. The defendant did not dispute these values.[28] In my opinion the appropriate value is the wholesale value of the boat. I will not deduct the sum of $550 which was specified as the cost of a motor service.
[27] Ex P5.
[28] T. p 52.
I fix a value for the boat in the sum of $21,000.00.
·Personal bank accounts and superannuation entitlements
No evidence was tendered by either party as to the sums held in the respective personal bank accounts and superannuation entitlements. It would have been better had those accounts and entitlements been the subject of evidence. It may have given a clearer picture of their respective financial positions throughout the full period of the relationship. It may be that the plaintiff had assumed that the respective sums would have been similar, because the respective salaries as at the date of trial were similar.[29]
[29] See T. p 25.
There ought not on this assumption be any adjustment in respect of those accounts or superannuation entitlements.[30]
[30] See Hogg v Roberts, supra, at p 253.
Accordingly no sum for those items has been included in the pool of assets for either party.
·The ‘dirt bike’
In her evidence-in-chief the plaintiff said that when the relationship had commenced in 2004, the defendant had already had in his possession both the Honda ‘Postie’ bike, and another bike which she described as a ‘dirt bike’. She said that she recalled that the ‘dirt bike’ was green and white in colour with the word ‘Atomic’ written on it.
She asserted that the defendant had retained it at the time of separation in April 2010.
The defendant denied having had a ‘dirt bike’ in his possession during their relationship. He explained that his parents had bought him a ‘dirt’ bike namely a ‘Yamaha YZ 80’, when he was aged about 17 years, but had only kept it for 2 or 3 years. He admitted that he had owned the “Honda Postie” bike at the relevant time. He explained that he had purchased another dirt bike some time after the termination of the relationship.
When the plaintiff was asked initially to comment upon the defendant’s evidence, she said that he had made a false statement. Later she conceded that she had no idea what type of bike it was, nor its value. Ultimately she said ‘to be honest, I don’t particularly care about the dirt bike’.
The plaintiff had tendered a photograph which appeared to depict a ‘dirt bike’.[31]
[31] Ex. P9, T. p 54.
The defendant explained that this was in fact a $10,000 dirt bike which he had purchased after the termination of the relationship.
I am therefore left with two different versions as to whether such a ‘dirt bike’ had been in the defendant’s possession during the relationship. On the state of the evidence I cannot be satisfied that the defendant did have such a dirt bike in his possession at the relevant time.
On the plaintiff’s own case it was owned by the defendant prior to the commencement of the relationship. The plaintiff cannot say what type of motor bike it was nor its value, either at the start of the relationship nor upon termination.
If I had been satisfied that the defendant had possession of such a ‘dirt bike’, then on the facts of this case the plaintiff would have made no contribution to its cost nor maintenance. In Howlett v Neilson[32] and Paino v Paino,[33] the respective Courts concluded that it was appropriate to exclude such chattels from the assets to be divided.
[32] (2005) 33 Fam LR 304.
[33] [2008] NSWLR 276.
Ultimately I am not satisfied that the defendant was in possession of a ‘dirt bike’ at any relevant time.
·The Honda ‘Postie’ bike
There was no dispute that at the commencement of the relationship the defendant owned the Honda ‘Postie’ bike. The plaintiff had estimated its value at $2,000. There was no proper basis for that estimate.
The defendant said that he had purchased it for about $1,100 and had sold it, after the termination for $900. In my opinion the best evidence of the value of that bike is the sum of $900.
The plaintiff had made no contribution to its cost not its maintenance. In my opinion this ‘bike’ ought to be excluded from the assets to be divided, in accordance with the dicta in Paino v Paino, supra.
Summary
The total value of the relevant assets is accordingly the sum of $58,512.79.
I turn now to the financial contributions made by the parties respectively to the acquisition, conservation or improvement of property of either or both partners, or to the financial resources of either or both of them.[34]
[34] S 11(1)(a) of the Act.
The financial contributions of each party
The state of the evidence with respect to each party’s financial contributions was less than satisfactory, principally because of the defendant’s failure to comply with orders as to discovery.
Consistent with the dicta of Blebly J. in Arnold v Dalton, supra, I was loathe to descend into an examination of individual items of expenditure. However the parties did submit that certain individual items ought be determined by the Court. Consistent with the obligation in s 12 of the Act to finally resolve all outstanding issues, I will, somewhat reluctantly, deal with those specific items.
·Loan repayments and general expenses paid prior to the termination of the relationship
Each of the loans, namely for the house property; the boat, and the motor vehicle was taken out in joint names of the parties. Both parties were liable for their repayments.
As was apparent from the opening, the plaintiff had asserted that she had paid all of the loan repayments in respect of the house and the boat. Initially the plaintiff’s approach was to quarantine those loan repayments, and exclude any payments for general expenses which may have been made by the defendant.
Thus the plaintiff referred to the loan from Aussie Home Loans in the sum of $189,182.50 in respect of the house property and the boat loan in the sum of $35,000. She deposed that she had paid the instalments on each which totalled about $92,600 until April 2011. She contrasted that with the loan of $23,000 for the motor vehicle which the defendant had paid off by instalments of $431 per month from the month of June 2006.
I do not criticise the plaintiff in this respect as, under the general law, which applied in W v D, supra, claims for contribution are those principally restricted to payments which have improved the asset, such as loan repayments.[35]
[35] W v D (2012) 115 SASR 61 at 78.
The fact remains that the subject claim is one made pursuant to the Act. Section 11 of the Act extends the concept of relevant contributions beyond merely those for the acquisition, conservation or improvement of the property of the partners. In the subject case, while the plaintiff used her funds to pay the instalments on the house property and the boat loans, it became apparent that the defendant contributed funds to the instalments on the motor vehicle loan; general expenses of the parties, and paid a fortnightly sum to the plaintiff.[36]
[36] See W v D at [75].
The defendant asserted that he had contributed to the house mortgage, saying that ‘we went halves in everything … we used to divvy the two bank accounts up … my pay went to the car payments and food, bills, and what not’.[37]
[37] T. p 42.
It is necessary to refer to some of the plaintiff’s evidence:[38]
QMs W, Mr B put to you that during the time you were still living together he paid for half of the household expenses, including the mortgage; do you agree.
AI paid for the mortgage in full out of my own bank account, as with the majority of the bills and all of the groceries and general living expenses. He did give to me a cash payment of approximately $200 per fortnight.
QDid he make any other financial contributions to either the mortgage or any of the bills and groceries other than that $200 cash?
ANot generally no. There may have been a time throughout the six or seven years that we were together that he may have paid a bill here or there.
….
[38] T. p 40 - 42.
HIS HONOUR
QWhat is being suggested to you is the arrangement was that moneys would be paid from your own separate accounts so that each fortnight or thereabouts on the appropriate basis you would pay the mortgage payment of about $600 per fortnight, is that right?
AThat’s correct.
QAnd out of his account a similar sum would be paid to cover things such as the mortgage on the car, grocery expenses and all other items so, in effect, you were contributing equally up until the period when your relationship came to an end; you were both contributing equally the same amount. Do you agree or disagree.
AI disagree that he was paying 50% and the majority of the groceries came out of his account.
….
QI’m trying to get to the nub of all of this: do you accept, looking at it in hindsight, you were paying directly for the (fortnightly) mortgage the whole of $600. Do you accept that whether in terms of paying the $440 (per month) the loan on the car, and other items he paid, that that would have equated to the $600 you were paying?
APossibly, yes.
QIn other words, if someone walked into the house not knowing either of you and said ‘what are your contributions to the relationship’ would they be generally the same.
AGiven the time we were living together it would have been approximately 50/50.
QThereafter when the relationship came to an end, you were effectively paying all the mortgage, getting no assistance at all during that period of time, and not receiving any occupational rent at all.
AThat’s correct … I was also paying for the boat repayments in full of $100 per fortnight.
I my opinion, on the state of this evidence, in general, the main financial contributions of the parties until termination in April 2010, should be treated as equal contributions. However it is clear that there were some additional contributions by each which must be credited to them respectively. In particular the financial contributions of the plaintiff since termination clearly outweigh the financial contributions of the defendant.
Without descending into minutia, they are as follows:
·Cash contributions to the purchase price of the house property
The defendant paid the cash sum of $8,930.98 at settlement in January 2006, whereas the plaintiff had paid the lesser cash sum of $2,000.00.
The defendant is entitled to a credit for 50% of the extra contribution namely the sum of $3,465.49.
·The lump sum discharge of the motor vehicle loan
The defendant paid the sum of $4,771.96 being the balance of the loan on 20 January 2012. He is entitled to a credit of 50% namely the sum of $2,385.98.
·Mortgage and Loan payments after termination
I accept the plaintiff’s submission that she is entitled to a notional credit for the house mortgage payments in the sum of $15,320.00[39] made by her for the period following the termination of the relationship in April 2010.
[39] T. p 77.
The plaintiff is entitled to a credit of 50% thereof, namely the sum of $7,660.00.
She is also entitled to a credit of 50% of $2,748.00.[40] on the boat loan for the same period. The plaintiff accordingly is entitled to a credit of $1,374.00.
[40] T. p 78.
The defendant is entitled to a credit of 50% of the payments of $5,172.00 made on the motor vehicle loan for the same period.
The defendant is entitled to a credit of $2,586.00.
·The plaintiff’s credit card debts
The plaintiff had asserted in her first affidavit that she was left with debts of $7,000 and $3,500 on her Aussie MasterCard and Bankwest MasterCard respectively.
In evidence she made it clear that as at the date of termination the Aussie MasterCard had a debt of $6,000 while the remaining cards had minimum debt balances. She explained that some of the debt involved their mutual purchases of groceries and living costs while the balance was for ‘clothes and other purchases’.[41]
[41] T. p 28 - 29.
The defendant asserted that the debt on the Aussie MasterCard was personal to the plaintiff – namely for braces. Again there was no evidence to that effect. It was first raised by the defendant in his final address.
The difficulty with this evidence and that of the defendant having allegedly expended his $25,000 ‘payout’ on the relationship, is that it is simply too vague. I cannot be satisfied that these MasterCard debts were incurred in meeting the general expenses of the relationship.
Accordingly I allow no credit to the plaintiff in respect of the MasterCard debts.
·Savings and Loan debt
In her third affidavit the plaintiff asserted that the defendant had withdrawn the sum of $2,000 from the joint overdraft on 14 January 2011 without her approval. She said that she was forced to pay the sum of $2,200 to settle the debt.[42] The defendant said that a joint debt had been incurred to enable the parties to travel to Fiji.
[42] T. p 34.
Prior to the termination of the relationship, the defendant had paid the sum of $1,700 the debt on that account.
However he said that, following the termination, the plaintiff had withdrawn a further $400. He accordingly withdrew the sum of $2,000. While the earlier payments of $1,700 were part of the pre-termination general expenses, in my opinion it is just and equitable that I allow a credit to the plaintiff limited to the sum of $800.00.
·Preparation costs for the sale of the house
There was no dispute that the plaintiff was entitled to a credit of $380 as 50% of the preparation costs.[43]
·Sundry items
[43] T. p 96.
I have made no further allowance for other items such as rates, taxes, insurance premiums, vehicle registration, vehicle maintenance nor petrol. I treat them as falling within the category of general expenses which contributions have been sufficiently recognised and compensated for, above.
·Non-financial contributions
I have no doubt that the non-financial contributions of the plaintiff and the defendant throughout the entire relationship should be regarded as equal contributions.
·Other relevant matters[44]
[44] S 11(1)(d) of the Act.
These items include the vexed question as to whether either party is entitled to a credit for occupation rent during the respective periods that only one of the parties was in occupation, and whether notional credits are due to the plaintiff because of the defendant’s failure to pay the house mortgage instalments on time in accordance with the order of the Court; and his failure to permit the balance of the settlement funds to be placed in an interest bearing account.
·Is either party entitled to a credit for occupation rent while the other party was in sole occupation of the house property?
· The legal principles
Each co-owner is entitled to use and occupy the entire property.
It is trite that a co-owner in occupation is not liable to pay an occupation fee to any other co-owner, unless he claims an allowance for improvements made by him, or alternatively he has excluded the other co-owner from the residence.[45]
[45] Forgeard v Shanahan (1994) 35 NSWLR 206; and Barel v Segal(No2) [2012] NSWSC 1054.
Where a party has been excluded, the other party who remains, rent free, in sole occupation, obtains a financial advantage over the excluded party, who generally incurs the cost of renting other premises. In principle that excluded party ought be credited with one half of the rent.[46]
[46] McKay v McKay [2008] NSWSC 177, F, B A v D, B J [2010] SADC 92; and M v P [2008] SADC 169.
The question as to the scope of ‘exclusion of a co-owner’ has been the subject of recent authority. In W v D,[47] Kourakis CJ, for the Full Court of the Supreme Court, considered this issue in a partition case.
[47] [2012] SASCFC 142.
His Honour described as a ‘vexed’ question, whether one party must account to the other for the benefit of his or her sole occupation of a property after separation. He referred to what he suggested was the “confusing” state of the case law. He noted that the historical basis for the ‘exclusion’ of a co-owner, was an actual ouster by force or physical obstruction such as a change of locks. He then turned to the facts of a case similar to the subject case, where there is no violence, but where the departing co-owner must pay for alternative accommodation while remaining liable on the mortgage.[48] His Honour noted that in Callow v Rupchev[49] and in McKay v McKay[50] the Court of Appeal (NSW) had extended the concept of ‘exclusion’ to include those cases where ‘it becomes no longer reasonable or practicably sensible to expect the partners in a domestic situation to co-occupy the premises. The one who remains in possession may be taken to do so to the exclusion of the other, and to be liable to pay an occupation fee’.
[48] At [28]-[30].
[49] (2009) 14 BPR at [28]-[29].
[50] [2008] NSWSC 177.
Kourakis CJ declined to follow the extended meaning of ‘excluded’, as developed in the case law in the NSW cases. He said that ‘plainly a relationship breakdown, without more, could not amount to exclusion for the purposes of a common law action against the remaining co-owner’. Accordingly, in this State, a relationship breakdown, without more, does not entitle the departing co-owner to claim an occupation fee from the resident co-owner.
That dicta has been the subject of critical academic comment.[51]
[51] Butt: 'Co-owner's claim for occupation fee' (2013) 87 ALJ 374.
Although his Honour said that ‘a co-owner who leaves the residence is not able to bring to account the benefit of the continuing occupation enjoyed by the resident co-owner if the resident co-owner fails to make any mortgage repayments’, it must be remembered that this was said in the context of a partition claim, and in the circumstances where it was a relationship breakdown without more.
Subsequently in Payne v Rowe,[52] Ball J while noting, that the recent case law was limited to cases involving matrimonial or de facto relationships, said:
There is a question of how far the principle extends. In Callow v Rupchev the parties were in a de facto relationship. However, the court described the case as one where there had been a breakdown in a "domestic relationship"; and held that, in order to claim an occupation fee it was necessary for the party making the claim "to demonstrate affirmatively that it was unreasonable to expect him or her to return to the premises during that period [that is, the period for which the fee is claimed]" (at [74]). It was the fact that it was unreasonable to expect the party who had left to return that made it appropriate for the party who remained in occupation to pay a fee. Both the language used and the rationale advanced are not confined to cases where the parties are in a matrimonial or de facto relationship.
P Butt states the principle more broadly still in the latest edition of Land Law, 6th Edition (2010), Lawbook Co, at [14 38.1]:
Logically, this "new" principle should not be limited to matrimonial or domestic relationships. Its underlying rationale is that the occupying co-owner cannot be liable for an occupation fee where the non-occupying co-owner is free to take up occupation but chooses not to. If, in the circumstances, it is unreasonable to expect the non-occupant to take up occupation, then fairness requires the occupying co-owner to compensate the non-occupant for the fact that one has enjoyment of the property but the other has not. [footnote omitted]
The extension of the principle beyond matrimonial or similar relationships has also been accepted in England in French v Barcham [2008] EWHC 1505; [2009] 1 WLR 1124, where Blackburne J held that a trustee in bankruptcy was entitled to an occupation fee from the bankrupt's wife for her continued occupation of the property after the making of the bankruptcy order. As Blackburne J stated at [34]:
The essential point, in my view, is that when on inquiry it would be unreasonable, looking at the matter practically, to expect the co-owner who is not in occupation to exercise his right as a co-owner to take occupation of the property, for example because of the nature of the property or the identity and relationship to each other of the co-owners, it would normally be fair or equitable to charge the occupying co-owner an occupation rent.
In my opinion, there is much to be said for the position taken by P Butt. However, it is doubtful that the Court of Appeal went so far in Callow v Rupchev and it is not necessary to resolve the question in the context of this case. I have already concluded that Jo was not excluded from the property. She chose to leave because the relationship between her and Jeremy had broken down. However, I think that the relationship between Helen, Jo and Jeremy was a domestic one of a type that is covered by the principle stated in Callow v Rupchev. Helen, Jo and Jeremy had lived together as a family. They had bought the property with a view to that continuing indefinitely. It is true that they had intended eventually to occupy separate parts of the property. But that does not alter the fact that they intended to occupy the property together. Having regard to the breakdown in the relationship between Jo and Jeremy, I do not think that it would be reasonable to expect Jo to return to the property.
[52] [2012] NSWSC 685.
Finally in Barel v Segal[53] the Court noted that the development of the law had not affected the need to establish exclusion, saying on the facts of that case:
The plaintiff is not in occupation to the exclusion of the defendant. The defendant has been free to come and go as he pleases … it cannot matter that the defendant is understandably not welcome in the home. The defendant has expressed no desire to enter the house, or has any reason for doing so. There is no injustice and no occasion or need to require the plaintiff to pay an occupation fee to prevent injustice to the defendant.
[53] [2012] NSWSC 1054.
Discussion and conclusion on occupation rent
I do not need to resolve any differences between the dicta of Kourakis C J in W v D, and the contrary opinions expressed in some of the judgments of the Court of Appeal (NSW). On the facts of this case, as will be clear, those differences are of no moment.
There were two distinct periods of their relationship in which one party was left in sole occupation of the house property.
The first period occurred between early July 2007 until May or June 2008.
The plaintiff explained that the defendant had voluntarily left the house property to ‘move out with his girlfriend’, taking with him ‘just about all of the furniture and property he had within the house, and he took the car’.[54]
[54] T25.
The plaintiff remained in the house. She continued to pay the mortgage during that period of separation. She said that the defendant had ceased making any payments to her during that period of separation.
The defendant did not regard that first period as a breakdown in the relationship. He did not suggest that he was in any way prevented from returning to the house property. He said that ‘We weren’t apart. …. I just moved out for a while to give her a break ... we were still together, we just had a break’.
He asserted that he continued to give ‘some cash’[55] to the plaintiff during that initial period, but was vague in that respect. In answer to a question as to how much he had contributed during that first period, he said that the plaintiff was living in ‘his house’. I cannot be satisfied that the defendant paid any cash at all to the plaintiff during that first period until reconciliation.
[55] T57.
In any event, on the defendant’s own evidence, there was not even a relationship breakdown at that time. The defendant had left voluntarily. He could have returned at any time even if, as in the case of Barel v Segal, supra, he might not have been immediately welcome.
Accordingly, there is no basis at all for concluding that the defendant was excluded, even in the wider sense. He had simply permitted the plaintiff to remain rent free until he chose to return. The defendant has no claim nor set-off for an occupation fee for that first period.
The second period commenced with the final separation in April 2010, when the plaintiff left the house property. Although the defendant thought that he was in occupation for about eight months, there can be no doubt that he was in sole occupation from April 2010 until about 20 April 2011, some two weeks after the order for sale made on 6 April 2011.[56]
[56] T60.
By May 2010 the relationship between the parties had irretrievably broken down. The defendant blamed the plaintiff.[57]
[57] T59; and 61.
The plaintiff asserts that the defendant changed the locks on or about 1 May 2010 denying her access to the house property.[58] The defendant denied changing the locks, although he conceded that he had placed ‘a lock on the back gate and had locked the boat out back’.[59]
[58] Casebook p 11.
[59] T97 and 100.
I do not need to resolve this dispute on the evidence. It is patently clear that the relationship had come to an end in emotional circumstances. The defendant had reacted badly to the breakup.
The police became involved. Although the plaintiff was permitted to recover some personal items in December 2010, she was otherwise, effectively, unable to enter the house property. On 2 March 2011 mutual restraining orders were made by consent. This was not a “mere breakdown without more”. This second period was entirely different to the first period.
Summary
Initially it was not realistically possible for the plaintiff to return to the house property. Subsequently she was prevented by a restraining order from so returning. Whatever may be said as to the ‘confusing’ state of the case law, the plaintiff was ‘excluded’ from the house property during that second period.
In my opinion she is entitled to an occupation fee for that second period.
The quantum of that occupation fee ought be calculated by reference to the cost of the plaintiff’s alternative accommodation.38 Some evidence was led from the Australian Bureau of Statistics as to comparable costs of accommodation, namely $200 per week. Of course 50% of that figure is $100 per week.
38 W.v D. (2012) 115 SASR 61 at 50
In McKay v McKay[60] the Court determined that the figure ought be fixed by one half of the market rent. The plaintiff had deposed in her first affidavit,[61] to the cost of renting ‘her cousins’ property being rental at $100 per week in addition to a contribution to grocery and utility costs.
[60] (2008) NSWSC 177
[61] Affidavit sworn 31/3/11 paragraph 39.
On either basis the sum of $100 per week is, in my opinion, the appropriate figure.
I am prepared to allow a credit of $5,200 to the plaintiff for occupation rent. I did not understand the plaintiff’s counsel nor the defendant to dispute that assessment.[62]
·Mortgage fee
[62] T. p 81.
The defendant failed to pay the house mortgage payments on time, or at all, notwithstanding the order made by a Judge of this Court. The defendant properly conceded that the plaintiff is entitled to 50% of the fee of $800, incurred post separation. The plaintiff is entitled to a credit of $400.00.[63]
·Interest bearing account
[63] T. p 97.
There can be no doubt that the defendant had declined to authorise the payment in of the initial sum of $29,870 into an interest bearing account. Again this failure was in breach of the order of the Court. I accept that if that sum had been invested at the then modest interest rate of 4% per annum it would have produced interest of approximately $1,800.00. This represents a loss of assets. In my opinion it is just and equitable that the plaintiff be credited with the sum of $900.00.
Summary
·Assets
The total of the relevant assets is $58,512.79.
·Financial Contributions
I set out in the following Schedule the Summary of the relevant financial contributions made by the parties.
CONTRIBUTION
PLAINTIFF DEFENDANT
CREDITSPre termination loans and general expenses
50% 50% House Payments
50% of initial cash payments
50% of post termination mortgage payments
50% of preparation for sale of $760.00
50 % of boat loan payments post terminationNIL
$7,660.00
$380.00
$1,374.00$3,465.49
NIL
NIL
NILMotor vehicle
50% of loan payments post termination NIL $2,586.00 50% of cash payout NIL $2,385.98 Savings and Loans debt $800.00 NIL Occupational Rent $5,200.00 NIL 50 % of fee for late payment on house mortgage $400.00 NIL 50% of loss of interest on balance of settlement funds $900.00 NIL TOTALS
$16,714.00
$8,437.47
It is in my opinion appropriate to set off the respective credits due to each party.
Accordingly the plaintiff, after such set off, is entitled to a credit of $8,276.53.
Discussion
As I have found, the general financial contributions and the non-financial contributions of the plaintiff and the defendant, until termination in April 2010, should be treated as equal contributions.
However the financial contributions post termination and other specified contributions by the plaintiff clearly exceed the defendant’s contributions by the sum of $8,276.53.
In my opinion it is appropriate to make an order for division of the assets of the parties to reflect the excess contribution of the plaintiff.
Section 10(2) of the Act empower the Court to, inter alia, direct orders for the transfer of property and the payment of lump sums.
In the subject case the few remaining assets have been identified.
I do not accept the defendant’s submission that the boat and the motor vehicle ought be sold.
The plaintiff obtained possession of the boat, and the defendant at all times retained possession of the motor vehicle. The sale of those assets would incur further fees to the parties.
Each party therefore will retain those assets after allowing credit to the other in the division of assets. Each party must execute the appropriate documentation to enable title to those assets to pass exclusively to the other.
Conclusion
In my opinion it is just and equitable that as a starting point the assets which I have assessed as having a value of $58,512.79 be notionally divided equally, save that the plaintiff be credited with the sum of $8,276.53 from the defendants notional share of $29,256.39.
Accordingly the plaintiff will receive assets to the value of $37,532.92 and the defendant, assets to the value of $20,979.87.
On the basis that the plaintiff retains the boat it will reduce her entitlement to $16,532,92; and the defendant’s retention of the motor vehicle, will reduce his entitlement to $13,979.87. These respective sums will be paid from the sum of $30,512.79 held in the Solicitor’s Trust Account.
I have made no allowance for interest as I have valued the assets as at the date of trial; both parties have retained possession of some assets and I have already made some allowance for the loss of interest on the funds presently sitting in the solicitor’s Trust account.
I will however hear the parties as to the terms of the formal orders and as to the question of costs.
While I had explained in M, DA and P, N (No2),[64] that there is no rule or principle, in the case of domestic partners seeking relief under the Act, that the starting point should be that each party bear its own costs of action, I encourage the parties to resolve the question of costs.
[64] [2008] SADC 180 at [17] - [19].
Orders
1.I declare that the plaintiff and the defendant were at all material times living in a domestic partnership as defined in the Act.
2.I order that:
2.1the defendant transfer to the plaintiff legal ownership in the Haines Hunter 495 Breeze Boat and its trailer within 14 days hereof.
2.2the plaintiff transfer to the defendant legal ownership of the subject Mitsubishi Magna motor vehicle within 14 days of the date thereof.
2.3the plaintiff be paid from the Solicitor’s Trust Account the sum of $16,532.92.
2.4the defendant be paid from the Solicitor’s Trust Account the sum of $13,979.87.
2.5the parties have liberty to apply on 2 days notice to the other as to the question of costs and any other formal orders.
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