IBM v TTV[2011] QDC 76

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff is 60 years of age. The defendant is 58 years of age. While the defendant raised in her defence and counterclaim issues which form the basis of a claim pursuant to s 286 of the Property Law Act 1974 (PLA) – for a property division arising from an alleged de facto relationship between the parties – the plaintiff’s original pleadings and his reply and answer not only denied the existence of any relevant relationship lasting “at least two years” – see s 287(a) of the PLA – but also sought a declaration of a trust over the real property (containing improvements) situated at 15/67 Edmund Rice Drive, Southport, which is presently held by the parties as joint tenants, together with consequential orders for relief, including that the defendant: transfer to the plaintiff all her interest in that real property; pay the sum of $10,000.00; and transfer all of her interest in a (now sold) motor vehicle (being a 1996 Toyota Seca). The defendant had originally sought an Order in the Supreme Court pursuant to s 38 of the PLA that a nominated person be appointed trustee to sell the real property, with an equal division of the net proceeds. That was discontinued, after transfer to this Court, on 25 August 2008.

2. [2]
   The trial was conducted over two days in the District Court at Southport, being 8 and 9 March 2011. Written submissions were thereafter made, with the latest of those submissions only being received in the registry at Southport on 1 April 2011, although not received by me until 7 April 2011.

3. [3]
   The evidence consisted of many affidavits by both parties. Both parties were extensively cross-examined on their affidavits. Further, TC, the defendant’s daughter, gave evidence, as did KJP, on behalf of the defendant. This latter witness gave evidence via telephone link. Finally, BLD was called on behalf of the plaintiff. All witnesses had earlier sworn affidavits which were filed in court.

4. [4]
   In Exhibit 1, which contained the material relied on by the defendant, I ruled that the affidavit of KES be struck from that list of statements. Further, the affidavit of TD, also appearing in Exhibit 1, was not relied upon by the defendant. Finally, even though KJP was called as a witness, all paragraphs other than paragraphs 1, 2, 11, 13, 14, 15, 21 and 23 were struck out from his affidavit. Also, paragraphs 17 to 27 (inclusive) of TC’s affidavit were struck out.

Background

5. [5]
   One thing which was common ground was that a de facto relationship did exist between the plaintiff and the defendant from 1997 until March 2003. Although it is common ground that whatever relationship then existed thereafter had ended by late September, or early October, 2007, while the defendant contended that it was the same de facto relationship that had existed at all times, the plaintiff contended that there was no de facto relationship after the defendant (to use the emotive designation of the plaintiff in his written submissions) “deserted” the jointly owned real property on 19 March 2003.

6. [6]
   Although the plaintiff’s contentions are in conflict with his amended reply and answer filed 5 May 2009, in the end, given that each party extensively cross-examined the other, what matters is the Court’s determination of what relationship, if any, existed and what legal characterisation should be given to it, from the evidence which was led.

7. [7]
   It was common ground that the jointly owned real property at Southport had a value of $275,000.00 as at 25 February 2011.

8. [8]
   Shares which were the property of MI5 Group Pty Ltd, a company owned and controlled by the plaintiff, were valued as at 4 March 2011 and appear with the valuations of that date in both parties’ Schedule of Assets and Liabilities and Schedule of Financial Resources.

9. [9]
   What were not given any valuations, by way of admissible evidence, were all motor vehicles (some of which were no longer owned by the parties at trial), all furniture and effects, the defendant’s jewellery, three tonne of aluminium extrusion owned by MI5 Group Pty Ltd, and the effect of all “improvements” alleged to be made by the plaintiff to the Southport property.

10. [10]
    As at the date of trial, the money owed by the plaintiff to his solicitors for the current proceeding was $30,780.24 (though he had earlier paid $59,426.04) and the money owed, similarly, by the defendant was $71,270.66.

11. [11]
    All other assets, and liabilities, were in the nature of bank and financial institution accounts, together with relevant credit cards. For these, credit and debit balances were identified.

De facto relationship

12. [12]
    At the basis of a claim under Part 19 of the PLA is the necessity to prove a de facto relationship.

13. [13]
    By s 259 of the PLA a “de facto relationship” has the meaning given by s 261 and “de facto partner” has the meaning given by s 260.

14. [14]
    In turn, s 261 defines a de facto relationship as the relationship between de facto partners. For its part, s 260 has reference to s 32DA of the Acts Interpretation Act 1954.

15. [15]
    Section 32DA states that such a partner is one of two persons who are living together as a couple on a genuine domestic basis, but who are not married to each other or related by family:  see subsection (1). Section 32DA(2) then provides that, in deciding whether two persons are living together as a couple of a genuine domestic basis, any of their circumstances may be taken into account including, relevantly for this case, the following:

“(a)the nature and extent of their common residence;

2. (b)
   the length of their relationship;

3. (c)
   whether or not a sexual relationship exists or existed;

4. (d)
   the degree of financial dependence or interdependence, and any arrangement for financial support;

5. (e)
   the ownership, use and acquisition of property;

6. (f)
   the degree of mutual commitment to a shared life, including the care and support of each other;

7. (g)
   the care and support of children;

8. (h)
   the performance of household tasks;

1. (i)
   the reputation and public aspects of their relationship.”

16. [16]
    Section 32DA(3) provides that no finding in relation to any circumstance is necessary for a relationship to be established. Section 32DA(4) provides that two persons are not to be regarded as living together as de facto partners only because they have a common residence.

17. [17]
    In both KQ v HAE [2007] 2 Qd R 32 and FO v HAF [2007] 2 Qd R 138 it was unanimously held that a de facto relationship will not be established for the purpose of Part 19 of the PLA unless it can be seen that “the parties have so merged their lives that they were, for all practical purposes, living together as a married couple”:  see the summary provided by McMurdo J in LAB v AH [2009] QSC 310 at [3].

18. [18]
    In FO v HAF Keane JA stated that the “circumstances of human affairs are so various that the courts should refrain from attempts to define more precisely than the legislature the kind of relationship regulated by” Part 19 of the PLA: at 149 [26]. He earlier noted that PY v CY [2005] QCA 247, at [7], “confirmed” that continuing cohabitation in a “common residence” is “not necessary to establish the continuation” of a de facto relationship where the parties “have lived together as a couple” and have “not effected a permanent separation” (emphasis added):  at 149 [25].

19. [19]
    In S v B [2005] 1 Qd R 537 Dutney J, speaking for the court on this aspect, held that de facto relationships are, by nature, fragile and that it has been recognised [referring to Hibberson v George (1989) 12 Fam LR 725] that the persistence of the observable indicia of a domestic relationship is fundamental to the continuance of a de facto relationship, citing as an instance of difference from marriage that where one party determines not to live together with the other and, in that sense, keeps apart, the relationship ceases even though it be merely to enable the one party or the other party to decide whether it should continue:  at 546 [33]. As further illustrating the point, Dutney J held that the party asserting the continuing de facto relationship must prove the positive aspects of the relationship rather than the party asserting separation being required to prove the negatives:  at 549 [50]. In AC v CM [2010] QSC 384, McMeekin J, after noting that the respondent to the application pursuant to Part 19 asserted that they were “boyfriend-girlfriend”, held that the matter cannot be resolved “by mere assertion by the parties”:  at [17]-[18].

20. [20]
    Necessarily, as observed by McMurdo J in LAB v AH, the circumstances of a particular de facto relationship do not necessarily include those which are often, but not always, present in other de facto relationships, such as the pooling of funds within a joint account or the co-ownership of property:  at [22].

Principles applicable to a Part 19 determination

21. [21]
    As the Queensland Court of Appeal recently reiterated in GAJ v RAJ [2011] QCA 65, through White JA, with whom Holmes JA and PD McMurdo J expressly agreed, the approach adopted for the exercise of the judicial discretion conferred by s 286(1) of the PLA is that discussed by Keane JA (as his Honour then was) in FO v HAF:  at [27]. That approach endorsed the four-step analysis explained by the Full Court of the Family Court in Hickey v Hickey [2003] FLC 93-143 at 78, 386 as providing a “useful discipline to ensure clarity of thought and transparency of judicial reasons”:  also at [27]. That analysis involves, as the four steps:

1. (a)
   the identification and valuation of the property, resources and liabilities of the parties;

2. (b)
   the identification and assessment of the contributions of the parties to their pool of assets, leading to the determination of their contribution-based entitlements in accordance with s 291 to s 295 of the PLA;

3. (c)
   the identification and assessment of the factors in s 297 to s 309 of the PLA to determine the adjustment, if any, to the contribution-based entitlement; and

4. (d)
   a consideration of the result of the three earlier steps, in order to determine whether that result is just and equitable in accordance with s 286 of the PLA.

22. [22]
    In GAJ v RAJ, by reference to Mallet v Mallet (1984) 156 CLR 605, White JA said that the High Court had made it clear that it is not correct to start with an assumption that property should be divided between the parties in any pre-determined proportions, or that equality is a convenient starting point after a long relationship, noting that, in the determination of the non-financial contribution of either partner in a de facto relationship, any indirect contribution to the acquisition, conservation or improvement of relevant property, including the contribution as a homemaker, is to be taken into account, although each case must be examined on its own facts so as to identify with some precision what contribution it was of a non-financial kind which would make equality of contribution appropriate:  at [28].

23. [23]
    Also, importantly for present purposes, are the observations in GAJ v RAJ that it is incumbent on an applicant for an adjustment order to provide some relevant evidence which can value a contribution to specific property (at [32]), and that the court is to make a holistic value judgement in the exercise of its discretionary power of a very general kind, wherein the paucity of evidence and the limited findings may not permit any mathematical exactitude in assessing a contribution:  at [34].

24. [24]
    In dealing with reliance upon Burgess v King [2005] NSWCA 396 to support the prima facie position that the parties should participate in the capital appreciation of an asset of the relationship in accordance with their initial contributions to the relationship, Keane JA in LW v GAB [2007] QCA 386 observed that there is a difficulty with applying that proposition where the contribution of one party to the acquisition of specific real property is not accurately described as an “initial contribution to the relationship” and, while it is important not to lose sight, for instance, of the fact that any initial financial contribution to the purchase of such real property is made exclusively by one party, any “prima facie position” as to the participation in the capital appreciation of an asset based on the contribution of the parties is, of course, subject to adjustment by the court (being a reason for the enactment of Part 19 of the PLA):  at [34]-[40].

25. [25]
    In his survey of relevant authority conducted recently by McGill SC DCJ in LCL v JGA [2010] QDC 266 it was concluded that, while it is appropriate to determine the value of the contributions of the parties to the assets at the beginning of the relationship, the determination of the value of the “asset pool” is to be at the time of trial, bearing in mind in an appropriate way the effect on such values of things that have occurred after the end of the relationship:  at [36]. This means that the appropriate approach is, prima facie, to adopt the values in respect of all matters, both assets and liabilities, as they exist at the date of trial, though taking into account where appropriate the way in which those have arisen:  at [42].

26. [26]
    Since there are submissions concerning initial contributions, it has been noted that Applegarth J in RD v DB [2011] QSC 83 referred to the so-called “erosion principle”:  at [30]. After noting that the Court of Appeal’s decision in PLM v RWS [2006] QCA 528 supported four particular propositions – which I will set out presently – it was further noted that, in In the marriage of Pierce [1998] Fam CA 74 at 78 it was observed that it is not so much a matter of erosion of contribution as a question of what weight is to be attached in all the circumstances to the initial contribution, it being necessary to weigh the initial contribution with all other relevant contributions by both parties. The four propositions were:  an initial substantial contribution by one party may be “eroded” to an extent by later contributions of the other party; in a long relationship, and depending on the circumstances, some “erosion” may be presumed; later contributions, also described as “offsetting contributions”, may be apt to erode the initial contribution of the other party; and whether an initial contribution has been “eroded”, and the extent of such erosion, depends upon the circumstances of the case.

27. [27]
    RD v DB also discussed the heed that must be paid if a global approach is taken, rather than an asset-by-asset approach, to the fact that the origin and nature of different assets still needed to be considered [referring to Nygh J in In the marriage of Gill, which was cited with approval by Mason and Deane JJ in Norbis v Norbis (1986) 161 CLR 513 at 523]:  at [32].

28. [28]
    A third aspect of RD v DB that arises for consideration here is the requirement to take account of the benefit that one party enjoys because the other provides a “roof over the head” of that party. As was expressed by Applegarth J on the facts before him, there can be a rough financial reckoning of the benefit of the contribution of one party’s property to accommodate “the couple”, which means that, in a particular case, besides the benefit of what can be loosely called “free accommodation”, the party who lives in the other’s house may have the opportunity to reap financial benefits because of the freedom to use the party’s own property as they see fit:  at [34]. Obviously, an analogous principle applies when one party solely occupies the jointly owned residence of them both, to the exclusion of the other.

Credibility

29. [29]
    While I will make further observations on credibility when dealing with different issues that arise in this case, before embarking on those considerations I make the following general determinations concerning credit.

30. [30]
    First, in very general terms, I accept that the defendant attempted to relate the relevant facts as reasonably well as she could. The qualification arises because I have concluded that, at least with respect to the sums of money she spent in what is called, in s 292 of the PLA, “homemaking” contributions, she had a tendency to overestimate the monetary extent of that contribution. This conclusion is reached after consideration of her lack of an identification of where many additional cash sums would have come from to purchase such everyday goods as those that are necessary for running a household. While I accept that her EFTPOS withdrawals were a base indication of the amount that she spent, I accept that there were times when she did also proffer cash for the payment of such items. Nonetheless, a close analysis of the things on which she spent her disposable income tend to show that there was not a significant amount of spare cash which could account for the whole monetary extent of what she said she spent. Even so, particularly as bolstered by the evidence of her daughter TC, I accept that she did spend more on such contributions than the plaintiff ever spent and that she did much of the housework that she asserted she did.

31. [31]
    Secondly, as for the plaintiff, I conclude that he was less than frank about most matters that were covered in his evidence. A close examination of his income, as well as an examination of non-income sources that he claimed to be available to him, which often involved a roundabout of re-investments, does not satisfy me that he was in any way an equal source of homemaker contributions. One particular aspect of his lack of candour is exemplified by his assertion of art work that he owned, yet no evidence was produced to establish the assertion. Another was his response of “absolute rubbish” to the assertion put to him in cross-examination that the defendant slept with him just about every night in the period from September 2001 to September 2003. That answer followed several other answers where he replied using the same term. When it was brought to his attention that the cross-examiner was merely investigating the nominated period, he conceded that he was “sorry” and conceded that they did sleep together every night in that period. Although they are simply instances, it is illustrative of the frequent approach that he had of absolute denial, which was also a feature of the instructions that he obviously gave when cross-examination was being conducted of the defendant and her daughter. In particular, with respect to the defendant’s daughter, TC, it was put to her in cross-examination that the plaintiff did not behave in the way that she had set out in her affidavit with respect to the events leading to March 2003. Since, as I will indicate next, I fully accept what TC stated, it confirms the view I have about the plaintiff’s lack of candour.

32. [32]
    Thirdly, as I have just indicated, I accept, in very large part, the evidence given by TC. She struck me as a witness who, while obviously a daughter who deeply felt for her mother, was still able to be objective about the factual circumstances. In particular, when it was put to her that she had discussed with her mother the aspect of her mother and the defendant sleeping together every night, her response (that she was told by her mother that her mother was under oath and that she was not allowed to talk about anything with her daughter) struck me as honest and reliable. Furthermore, when this witness was cross-examined about the circumstances of her mother leaving the jointly owned property in Southport in March 2003, she, quite openly in my view, noted that her mother was “in denial for a long time” and that, even after they moved out, the living apart “only lasted for maybe two months” and that that “was against what I wanted her to do, but I had to go with her”.

Existence of de facto relationship after March 2003?

33. [33]
    Noting the above concession that a de facto relationship did exist between 1997 and March 2003, it is necessary to move to a determination of what occurred after the latter of those two dates.

34. [34]
    Crucial to a determination of what occurred at that time is the evidence of TC. From the whole of the evidence (a part of which I have just canvassed) it is clear that the reason that the defendant left the jointly owned property at Southport in March 2003 to move to a Unit at Arundel was because the defendant’s daughter could not handle living with the plaintiff any more. As earlier observed, I accept her answer that the plaintiff did behave in the way that she set out in her affidavit.

35. [35]
    But it is also important to note that the evidence of TC was that she was the person who “pushed” her mother to the extent that her mother finally agreed that she would “get out”. Importantly for this determination is whether the defendant wanted to end her then existing de facto relationship with the plaintiff. It is clear from the evidence of the defendant’s daughter that her mother wanted to move back to continue her relationship with the plaintiff, even though that was against what her daughter wanted her mother to do. Additionally, the evidence of TC reinforces the defendant’s evidence that, even after leaving, the defendant kept in telephone contact with the plaintiff. TC remarked that even though her mother tried to hide it, she had heard her in the bedroom a few times talking to the plaintiff. She summed up this aspect by stating that the defendant and the plaintiff had been talking “throughout the whole time” between leaving in March 2003 and the physical return to a Unit in reasonably close proximity to the jointly owned property.

36. [36]
    For her part, the defendant described this leaving on 19 March 2003 and “returning” to this adjacent unit, Unit 21, on 28 June 2003 as involving her being “incredibly upset” at having to leave when she did. When asked why she was so upset, she responded that it was because she “didn’t want to move”, explaining that it was only because of the plaintiff’s attitude, words and actions against her daughter, and herself, which was affecting her daughter’s schooling, and that having the three of them in one Unit “was just not working”. When it was put to her that the “relationship” was “not working”, the defendant replied that the relationship was “fine”, it was “just” the plaintiff’s attitude towards TC and his actions and his words towards her that were affecting her daughter so she had to take her daughter “to a safe place”. Furthermore, she explained that anger was not one of her emotions and that her moving out at that stage was “not ending the relationship”.

37. [37]
    When asked, in cross-examination, about the fact that she did not contact the plaintiff for some time after she left in March 2003, she responded that she guessed that there was a short period of time, which might have been a couple of weeks, where she did not do so, but that on “many, many occasions” they did talk on the phone “to and fro, night time, during the work day”.

38. [38]
    When explaining about how they got “back together”, she explained that even though she was living at Summerfields, first at Unit 21 and then at Unit 51 from 13 May 2004 (the latter being even closer than the first to where the plaintiff continued to live) and the plaintiff was living at the jointly owned property, they were both making sure that they could see each other all the time. The Units at Summerfields were those in which TC described the plaintiff and the defendant having meals together and where she described that, when her mother was not there, she was over at the plaintiff’s place. The defendant’s daughter also gave evidence about constant grocery shopping for the meals provided at her mother’s place and her mother washing all the dishes at the end of meals that were had there.

39. [39]
    The reason for the move to Unit 51, also, as noted, in the immediate vicinity of the jointly owned property, was rejected by the defendant as being because it was cheaper, the defendant asserting that with Unit 51 the geography (i.e. the short distance from one Unit to the other) was that it was “like it was a big hallway between the two” and that the plaintiff slept over in Unit 51 every night and the two of them just walked between the two Units. I accept as truthful the answers by the defendant, including that the exception to the plaintiff eating with the defendant every night was that she might have eaten at his place one night a week and that he took her to restaurants and paid for her. That, of course, is totally consistent with the evidence of TC, particularly as she admitted she was absent on weekend nights.

40. [40]
    It is not in contest that the defendant returned to live in the jointly owned property in early February 2006. The explanation given by the defendant was that the defendant’s daughter had moved out when she finished school to live with a friend. She rejected the suggestion put to her that until that time they were “dating as a normal dating pair”, adding that the word “dating” put a “very superficial connotation on our relationship”. The late relationship “Maverick Agreement” is supportive of more than a dating relationship, even though it was written sometime later, because its terms deal with a then longstanding, and up to then ongoing, “relationship”. Since the letter was written by the plaintiff, even though there was no evidence that the defendant “adopted it”, it is the plaintiff who alone has sought to characterise the relationship as non-complying with the terms of the PLA.

41. [41]
    It is also important to note that, perhaps letting his guard down for a moment, the plaintiff responded, with respect to having sex all the way through up until October 2007, that had a “sexual relationship for years”. Further, from August 2003 to July 2005, the defendant continued to deposit earnings from Careers by Design (“CBD”) – a business run by her – into the MI5 Group Pty Ltd’s bank account, totalling $6,849.50.

42. [42]
    Another important factor in determining what occurred in this context is that the defendant started to make repayments of the loan secured by the mortgage (to which both were parties) concerning the jointly owned property, of $400.00 per fortnight from April 2005 until August 2006. I accept that the context was that the plaintiff had asked the defendant whether he could pay her rent and then she could pay the mortgage repayments. It was not fully explained why the plaintiff wanted to take that course (apart from the alleged ease of doing it), but it was not in dispute that that arrangement applied for that period of time, despite the fact that there was no rental to be paid after the defendant returned to the jointly owned property in February 2006. Although it was put to her in cross-examination that the reason was that it was more convenient for the plaintiff because he had a bank branch where the rent could be paid, the defendant responded that she was not sure whether there was an underlying reason, but that she did agree to the arrangement. It is difficult to conceive how the parties were in a “dating” relationship when arrangements such as that prevailed.

43. [43]
    With respect to how the relationship ended, it is clear that in May or June 2007 the plaintiff moved out of the jointly owned property for a couple of weeks. She rejected the suggestion that it was some six weeks. After the defendant returned to the jointly owned property, both parties initiated applications for Domestic Violence Orders in September 2007. The defendant stated that once that happened, and even though the plaintiff said it was best that they did not sleep in the same bed, “it did occur” still. Certainly, by October 2007, the defendant had left the jointly owned property and it was clear that the relationship that previously existed then was at an end.

44. [44]
    What, then, is the characterisation to be placed upon the relationship had by the plaintiff and the defendant from March 2003 until mid-late 2007?

45. [45]
    Given the analysis just undertaken, I conclude: that any separation that did occur was not a permanent separation; and that the parties, although living for some considerable time under different roofs, continued the other indicia of a domestic relationship such as having meals together, going to each other’s residence, the defendant performing household tasks (including cleaning up after such meals held at the place where she was living), and there being a constant sexual relationship. I conclude that the plaintiff, for his own reasons, significantly downplayed the relationship in describing it, through his instructions for the purposes of cross-examination of the defendant, as “dating”.

46. [46]
    Thus, the conclusion I reach is that there was a continuing de facto relationship from 1997 until some time in the middle of the second half of 2007.

47. [47]
    Thus, no issue can be raised that relevant proceedings were not begun within the two years after the day on which the de facto relationship ended pursuant to s 288(1)(a) of the PLA. The other consideration is whether the Court is satisfied, pursuant to s 287(a), that the de facto partners lived together in a de facto relationship for at least two years (because it is only then, subject to further provisions which are unnecessary to consider here, that a court may make a property adjustment order on it being so satisfied). That requirement also has been met.

“Asset Pool”

48. [48]
    The plaintiff’s relevant Schedule is Exhibit 38. The defendant’s relevant Schedule is Exhibit 2.

49. [49]
    Both Schedules accept that the present value of the legally jointly owned real property at 15/67 Edmund Rice Drive, Southport is $275,000.00. No other property is alleged by either party to be owned jointly, apart from the “joint mortgage” account described as “Homestyle Capital Lending” which shows an estimated credit of $51.15.

50. [50]
    The presently owned, or leased, motor vehicles are a 1999 Toyota Corolla Conquest owned by the plaintiff and a motor vehicle leased by the defendant. Taking the mid value for the plaintiff’s motor vehicle, it has an estimated value of $5,500.00. The defendant’s motor vehicle is leased and, therefore, legally has no present value for the defendant. But since each uses that party’s motor vehicle entirely for their own purposes, it is appropriate in this case that despite one car being owned and the other leased, they should be seen to negate each other in terms of a contribution to the property pool. That is the way I intend to deal with them. As the 1991 Alfa Romeo 164, which from the financial statements of MI5 Group Pty Ltd was owned by it, since no evidence has been led about value – and although the plaintiff estimates its value as “NIL” whereas the defendant’s estimate is $6,300.00 – I decline to accept that it has much value for present purposes.

51. [51]
    With respect to the 1996 Toyota Corolla Csi Seca, that was damaged beyond repair in an accident and the defendant received an agreed pay out value on it. Although there was some slight difference about that amount, I accept that it was in the order of $5,000.00. But it does not constitute part of the present property pool. Rather, it was a sum received for a motor vehicle which the defendant contends was a gift from the plaintiff and which the plaintiff asserts was held “on trust” for him. That means that it can only be considered when consideration is undertaken for step 2.

52. [52]
    With respect to bank accounts, there is no dispute between the parties that the amounts held in credit in those statements at dates close to the present time are, in total: for the plaintiff, $7,821.38; for the defendant, $2,115.64; and for MI5 Group Pty Ltd $43,112.42. With respect to MI5 Group Pty Ltd, that sum should not really be part of the property pool, even though that company is wholly owned, and clearly controlled, by the plaintiff. It is a separate legal entity and no statutory provision is available to make it otherwise and no other legal argument has been proffered to gainsay such an approach. Rather, it should be seen as part of a “financial resource” of the plaintiff: see the definition in s 263(c) of the PLA.

53. [53]
    Turning, then, to the shares. Since there is no evidence as to the value of MI5 Group Pty Ltd, despite the bank balance (in credit) held by it, it has become impossible to value the one hundred shares held in it by the plaintiff, particularly where that company may owe, by way of loans given to it, to the plaintiff the sum of $156,498.50 (according to the financial statements of that company as at 30 June 2010). But there is no other basis identified for that liability. All, or part, of it may be the effect of loans made by the plaintiff to it. It is not a liability of the plaintiff and while it might otherwise bear upon the value of the plaintiff’s property, or (perhaps) financial resources, I decline to give it any value greater than any loan obligation that is established as owing to the plaintiff. The defendant was not cross-examined on her statement that the plaintiff had described such liability to her as a “furphy”. Plus, given that the obligation bounced around in a way which was not sought to be explained from the plaintiff’s other monetary dealings, particularly from 30 June 2005, it leaves the Court with no satisfaction at all that either there was a “real” asset of the plaintiff or that there was a “real” liability of MI5 Group Pty Ltd concerning such a loan, despite the fact that, for the 12 months after the end of the relationship in 2007, about $100,000.00 more of “investments” appeared in the financial statements of MI5 Group Pty Ltd and the plaintiff’s loan account increased by an equivalent amount. There was no examination at all of this activity, much less from where the loan monies would have been obtained by the plaintiff. An examination of Exhibit 33 (the Company’s bank records with NAB) shows that, while there were 2 “Cheques Deposit” or “Cash and/or Cheques Deposit” of $50,506.34 and $57,195.49 during that period, no explanation was offered by, or sought from, the plaintiff concerning them. This is despite there being some evidence from limited reconciliation records of the company (exhibited by the defendant) showing “loans” from the plaintiff. But, in the end, the plaintiff elected not to claim such as an asset of his, although the defendant claimed it as a financial resource (which it may be, if only because repayment of any such loan may be “discretionary”). In the end, since the latest company accounts show an approximately (negative) asset position of $81,500.00, I intend to concentrate solely on the “resources” available to the plaintiff from the identified company assets.

54. [54]
    The remaining shares that are set out in the Schedules are, in fact, owned by MI5 Group Pty Ltd as well. Substantially, their value is not in dispute and totals $56,647.35. There is, however, some dispute about the value of 1,500 Compass shares issued at $0.15. While the plaintiff values those at nil, the defendant values those at their issue price, namely, $225.00. Again, the difficulty here is that the shares are really not part of the property pool but, rather, a financial resource of the plaintiff. Further, there is no independent valuation given of these shares, although they were claimed as a total loss in the company’s 2010 tax return.

55. [55]
    With respect to furniture and effects, while the plaintiff assesses each party’s as having an estimated value of $3,250.00, the defendant assesses the value of her furniture and effects as “Nominal”. Nevertheless, given that both parties have their own furniture and effects and have always treated them as their own during the whole of the relationship, I conclude that they negate each other in the determination of the total property pool.

56. [56]
    Before turning to liabilities, the remaining assets are described by both sides as “miscellaneous”. Turning first to the defendant’s jewellery, while she excludes it from her Schedule, the plaintiff gives an estimated value of $5,000.00. In the absence of any evidence from either party about its value, I decline to bring it into consideration. Similarly with respect to the three tonne of aluminium extrusion. While the plaintiff assesses its value as “NIL”, the defendant estimates its value to be $4,500.00. Yet again, no valuation evidence of any kind was led. Additionally, the plaintiff claimed it was “dumped”, for nothing, supposedly because it was “purpose built”. So, again, I decline to bring it into consideration in the pool. To the extent that I am wrong about both of those, they would, in any event, negate each other. Also, the aluminium extrusion is said to be owned by MI5 Group Pty Ltd and, therefore, could be a financial resource only.

57. [57]
    It is then appropriate to turn to the liabilities. The plaintiff asserts that he has a liability of $925.77 with respect to an NAB Visa Classic credit card. The defendant asserts that it is no liability at all. Despite that figure being the exact figure of the defendant’s Visa debit, the plaintiff was not cross-examined about this particular liability. I accept that it is the amount asserted. Apart from amounts owing to the solicitors for the present proceeding, the liabilities of the defendant are with respect to credit and store cards. It is not disputed that they total $12,042.67 or that they substantially represent post-separation liabilities. The difference is some $11,000.00.

58. [58]
    Considering, then, the money owing by each to their respective solicitors, it is common ground that the plaintiff owes some $30,780.24 and that the defendant owes $71,270.66. That, of course, does not take into account an amount already paid by the plaintiff of $59,426.04. Although there was no argument about the source of the money that was used to pay an earlier account of the plaintiff to his present solicitors concerning this proceeding (it being paid from the proceeds of a cheque from KJP of $55,000.00), it is preferable to deal with that source (and the relevant amount) in a consideration of the relevant “contribution”, if only because it is unfair to take one side’s total legal bill into account without taking, in full, the other side’s account. Therefore, the sum of $59,426.04 will be added to the liabilities. But taking all such liabilities together, there results a substantial negation of one by the other. To the extent that there is a difference, it results simply from one client being charged more than the other; but, as noted, it is not, overall, substantial.

Other financial resources

59. [59]
    Apart from the matters identified by me as true financial resources and not part of the property pool, there is general agreement that specific financial resources available to each party concern the superannuation interests of each. For the plaintiff, it is agreed that the present value of that superannuation is $35,915.54. For the defendant, the value is $127,635.40. Neither party has sought either that superannuation interests be brought into any calculation of the property pool or that there be some adjustment to their property interests because of those interests. As for the “liability” of MI5 Group Pty Ltd to the plaintiff, which is potentially not a resource but an asset of the plaintiff, for the reasons expressed earlier, it should be set at nil, especially where, if payable, there is little available to meet the liability apart from the other identified assets (already referred to). All other resources have been identified in the consideration of the property pool.

Initial contributions

60. [60]
    The parties began their relationship in 1997. It was stated by the plaintiff, without any records confirming the figure, that he then had about $75,000.00. The plaintiff’s written submissions state that the plaintiff must have had “significant cash” in 1997 because his earnings (constituted by his wages, plus his profit share from his investment in Camel Australia Pty Ltd) indicate that he could not otherwise have saved the amounts of money which appeared in Exhibit 33 in 2000 and the amounts of money that he had in later years in term deposit statements, particularly where he was paying $180.00 per week in rental. The plaintiff’s own statements and those of MI5 Group Pty Ltd do not explain how the company could have such term deposits as early as 1997. They “began” on 13 April 2000. They appear to have originated from “term deposits” which are first identified in the 30 June 1999 financial statements as “investments” (resulting from “deposits” on 26 May 1999 and 16 April 1999). Since (at least) the former was not accounted for by “income”, and since there is an explanation forthcoming for the latter (i.e. “profit share” from Camel Australia Pty Ltd), the best that can be said for the plaintiff’s case is that the former source may be a loan, or loans, and the worst is that the deposits post-date 1997 by some 2 years. There was, in addition, presumably on 29 March 2000 (also prior to April 2000), a further profit share deposit of at least $17,699.00, as disclosed in the 30 June 2000 financial statements. The defendant’s written submissions, in reply, contend that not only was the sum of $75,000.00 not supported by any documentation, it was, in fact, disproved on the plaintiff’s own documentation. As developed in the defendant’s original written submissions, in 1997 the plaintiff was not working full-time, had not disclosed any income for the year ending 30 June 1996 and for the year ended 30 June 1997 his taxable income was $15,340.00. The balance sheet of MI5 Group Pty Ltd for the year ended 30 June 1996 showed an excess of liabilities over assets of $29,893.58. Even the “cash at Bank” was only $20,000.00. It was in a similar position as at 30 June 1997. Whilst the plaintiff’s Suncorp Account No. 300008621 shows a deposit of $27,000.00 on 13 May 1998, its source is not otherwise identified, although there is a reference to “35645530”. Similarly, for 13 October 1998 there is a deposit of $30,000.00 from “35767210” (and no further identification). It must be noted that there was a withdrawal of this exact sum, earlier, on 13 May 1998. As for term deposit statements, the plaintiff has no bank records before 1998. Although the plaintiff received $32,810.40 from his late mother’s estate, that was in November 2006 and August 2007 and, therefore, after the loan for Unit 15 had been paid out. The bulk of the inheritance can be traced into later share purchases in late 2007 and early 2008.

61. [61]
    In the end, I am not convinced that the plaintiff had a substantial amount of money in 1997 or, if he did, that he “contributed” it to the relationship. As for the defendant, although she was employed on a full time basis earning approximately $50,000.00 per annum, the townhouse that she owned at Studio Village was sold shortly after the parties commenced cohabitation, yielding little or no sum for the defendant on sale. Besides her then accumulated superannuation which was then simply a financial resource, she simply had her own furniture and household effects. Besides, she had two children living with her, being TC aged approximately 10 years and TD aged approximately 8 years. Thus, she also contributed very little, if anything, to the relationship initially.

62. [62]
    Consequently it cannot be said that either party, particularly in a relationship that lasted from 1997 to mid-2007 – a period of ten years – made any initial contribution of substance, but if they, or one of them, did, particularly taking into account the principles concerning “erosion” for such a relatively small sum, it has become of little moment in the overall determination.

Jointly owned property

63. [63]
    Besides the small sum, being a credit balance of $51.15, in the NAB Home Side Lending Account concerning the loan secured by the mortgage which has now been discharged, the only joint asset is the real property described as Lot 15, GTP 2280, County of Ward, Parish of Nerang, being all that land contained within Title Reference 17488050 (i.e. Unit 15/67 Edmund Rice Drive, Southport).

64. [64]
    In the plaintiff’s written submissions, it is contended that the “50% interest” in Unit 15 which is held by the defendant is “clearly and unequivocally held on trust”. For this purpose an “Agreement” dated 1 August 2001 is relied upon.

65. [65]
    For her part, the defendant contends: that the contract to purchase Unit 15 was signed on 17 July 2001; that that contract became “unconditional” before 1 August 2001; that the application for a loan, subject to mortgage, to NAB was applied for before 1 August 2001; that the “Agreement” was, in fact, only signed on 1 August 2001; that the defendant had by then deposited money originating from her business “Careers By Design” (“CBD”) to the extent of $22,254.61 into MI5 Group Pty Ltd’s bank account prior to the signing of the contract in July 2001; and that she signed the “Agreement” because she “felt I had no choice because she was suffering” from “severe depression” and it was “just another thing that was put upon me”. She otherwise described, when signing it, as being that she “felt under duress, for sure”. To the extent that there is disagreement concerning the purchase of Unit 15, I accept the defendant’s versions of events, particularly as I was unimpressed generally with the plaintiff’s credibility on most issues, and especially so where he was the author of such documents prepared solely by him for his exclusive benefit and where he has, to my mind, engineered the signing by the defendant of documents regardless of her attitude to execution by her of them.

66. [66]
    Some indirect support for the defendant comes from answers given by the plaintiff in cross-examination. When being asked about the application made to NAB for the relevant loan, and why certain entries were made in that application with respect to the plaintiff’s financial situation, he stated that, by then “we’d made an agreement which included for her and I to buy it jointly”, so that decision then obviated a need to “show any more income” (emphasis added). He had stated, in affidavit form, that the lender (i.e. NAB) wished to “consider” the defendant’s income simply to protect itself “as she was a joint owner and would become the sole owner in the event of my death” (emphasis added). Somewhat curiously, without her income, as Exhibit 32 shows (i.e. the NAB Mortgage Application), the monthly expenditure would have grossly exceeded the monthly income, where such expenditure included the actual “loan repayment”.

67. [67]
    But, more importantly, the terms of the agreement itself – even if one were to accept the plaintiff’s assertions that it was merely the written form of earlier oral arrangements reached (a fact denied by the defendant) – properly construed, remain critical. This is because it recites that, while the “beneficial ownership of this property remains” with the plaintiff, the property “is being placed in the title of” the plaintiff and the defendant “as joint tenants for the purposes of title transfer in the event of the death of” the plaintiff. That last statement is an accurate summary of the effect of joint tenancy when one joint tenant dies. It is also inconsistent with the beneficial ownership of the property remaining with the plaintiff.

68. [68]
    In the end, to say the best about it, it is a curious document. While the actual circumstances of the monetary contributions to the purchase and upkeep of Unit 15, as well as repayments of the loan (for which the mortgage was a security), need to be further examined, suffice it for me to conclude that, for present purposes, the legal title is clearly one of joint tenancy and that the parties, by their actions, have treated the jointly owned property as theirs. I, therefore, reject the allegation that a trust was executed, the onus being on the plaintiff to establish it. And even if I were to be wrong, the “contributions” to be considered to it are, to it, as the almost entire property pool anyway.

69. [69]
    The purchase of Unit 15 in 2001 occurred at a time some four years into the relationship. As earlier observed, the defendant had transferred a sum of more than $22,000.00 into the account of MI5 Group Pty Ltd prior to the purchase, from the CBD business.

70. [70]
    Nevertheless, a review of the plaintiff’s documentation at the time of the purchase shows that the plaintiff did withdraw from his Suncorp Passbook account the sum of $26,414.29, by way of a bank cheque, on 13 August 2001. The cheque was made payable to “Allansons Trust Account” and clearly went to monies paid in the final settlement of the purchase of Unit 15. Since no relevant documentation relating solely to the purchase, rather than financing, was produced, any disquiet that I have about when the deposit was paid (for a contract entered into on 17 July 2001) so that the contract was able to become unconditional before 1 August 2001 is removed since neither party disputed the order of events. The loan secured by mortgage from NAB was in the sum of $70,000.00.

71. [71]
    The next important figure is an earlier deposit into the plaintiff’s Suncorp Passbook on 16 July 2001 of $25,000.00. Prior to that time the account had a credit of only $3,322.29. From the statements of MI5 Group Pty Ltd it can be seen that the sum of $25,000.00 originated from its NAB cheque account, with the cheque no. 3303 showing that debit occurred there on 16 July 2001. That same statement from NAB shows that on 13 July 2001 there was a deposit of $26,061.90. According to the affidavit of the plaintiff filed 8 July 2010, that sum was an amount that MI5 Group Pty Ltd received from Camel Australia Pty Ltd. It was for profit share (as appears from the company’s financial statements). Therefore, the sum should have been brought into account in the taxation of MI5 Group Pty Ltd in the same way as the plaintiff asserts that the defendant’s income from CBD would have been.

72. [72]
    Although the defendant, in cross-examination, was taken through a schedule of transactions from NAB Bank Account No. 54-498-3076 from 21 June 1999 to 18 August 2010 and although she, besides acknowledging originally that some sums were withdrawn from that account to pay some business expenses, acknowledged some further business expenses were made from it – this being the account into which she made deposits from CBD – there is no evidence in that document, or from anything elicited in that cross-examination, which shows any payments significantly diminished the deposits from her of $22,000.00 to this time. When once compares that figure to the figures proffered by the plaintiff for mid-2001, considering that both sets would be subject to similar taxation treatment, there is little difference concerning monies available from MI5 Group Pty Ltd, as contributions by each party, to meet the initial payment for Unit 15. Further, the reduction by $5,691.00 (for all expenses met directly by MI5 Group Pty Ltd) for CBD expenses is from the total paid into the company of some $31,760.09. But this still leaves a sum greater than $20,000.00 (before tax) that was available either “for” Unit 15 or “for” the plaintiff’s “financial resources”.

73. [73]
    One of the significant matters in this trial is the plaintiff’s lack of understanding about the legal difference between corporate legal entities and individual entities. As is indicated by the “Agreement” dated 1 August 2001, the plaintiff’s understanding generally of legal issues and, perhaps, responsibilities is shallow. He appears to have treated MI5 Group Pty Ltd as simply an extension of himself, paying no heed to the duties owed by directors to corporate entities. This conclusion is supported by answers given, in cross-examination, by the plaintiff, where he “explained” that he could state to NAB that he had cash and shares “in” MI5 Group Pty Ltd of $80,000.00, even though the balance sheet showed net assets of $17, 618.41 only, because, even though the money may have been owed “to me or somebody”, the money was “still” in the bank. In addition, although the plaintiff encouraged the defendant to pay monies, obtained as a result of her running the business of CBD, into MI5 Group Pty Ltd, there is no proper explanation by the plaintiff as to how the defendant, if ever, was able to withdraw money from that legal entity. Since there is no evidence before me that the defendant withdrew amounts, or other persons caused amounts to be withdrawn for her, from MI5 Group Pty Ltd, while the actual sum used to constitute the payments in mid August 2001 for Unit 15 may be said to have originated from moneys earned by the plaintiff and channelled by him into MI5 Group Pty Ltd and then channelled out by him to his own personal account, the fact that the defendant’s money almost totalling that amount was available for the plaintiff’s use, as dictated by the way that he used MI5 Group Pty Ltd, leaves the Court no clearer as to who was the real contributor to the sums used to purchase Unit 15, apart from the joint loan of $70,000.00 from NAB. This was all done in the context where, in her affidavit filed 11 October 2010, the defendant denies that she withdrew any funds from the accounts of MI5 Group Pty Ltd, that she was not a signatory to any such statements and that she was not paid out various sums from any such statements (there simply being an expectation that she would get her money back, “but this did not occur”).

74. [74]
    As for the repayments on the mortgage, it is clear from all the documentation contained in Exhibit 34 that, initially, on and from 14 September 2001 the amount of $700.00 was paid monthly from a nominated account which was the plaintiff’s. That monthly payment continued until 16 June 2003, although, on 9 August 2002, the plaintiff paid $8,000.00. On 25 June 2003, a payment of $3,800.00 was made by the plaintiff in reduction of outstanding moneys under the loan. From 1 January 2004 to 30 June 2004, the NAB documents merely show that $23,824.00 was paid (presumably by the plaintiff). Then, from 14 July 2004, the monthly sum paid was $512.00; and paid again from an account of the plaintiff. The last such payment was made on 14 April 2005.

75. [75]
    On 28 April 2005, an amount of $6,600.00 was paid from a joint account of the plaintiff and the defendant. Then, apart from 2 sums of $200.00 paid by the defendant on 29 April 2005 and 13 May 2005, the defendant paid the sum of $400.00 per fortnight on and from 29 April 2005. That fortnightly sum ceased with the last payment of $400.00 on 4 August 2006 and then the defendant made a further payment of $152.35 on 18 August 2006. Thereafter, the defendant made further payments of $1.00 monthly on and from that date. As explained by the defendant in her oral evidence, she and the plaintiff agreed that they would keep the facility open and the payment of $1.00 per month was to achieve that end. The plaintiff proffered no explanation to gainsay that reason. In total, the plaintiff paid in the order of $64,000.00 and the defendant paid in the order of $16,000.00 in “discharge” of the mortgage loan. Assistance by the plaintiff to pay the defendant’s rent can be dealt with in assessing “contributions” to the property pool and financial resources.

76. [76]
    Next to be considered with respect to Unit 15 are the contributions, if established, to the conservation or improvement of that Unit. The plaintiff asserts that: $30,832.00 was paid by him for body corporate fees for 376 weeks; $5,000.00 was paid for the pergola; $4,433.00 was paid for air-conditioning; and $2,000.00 was paid for a new hot water system. While it is true, as the plaintiff’s written submissions contend, that the alleged contributions by the plaintiff to the pergola, the air-conditioning, the hot water system and “minor improvements” (such as installing cupboards and shelves, and more lights both inside and out – presumably costing more than the asserted average of $20.00 per week on “maintenance”) were not challenged, there was no valuation evidence at all as to the effect of those “improvements” on the value of Unit 15. Thus, the increase in value over time may well have been solely due to the increasing market values of such units. Furthermore, there was no “evidence” at all of such payments in cash, or otherwise. Even though the plaintiff stated that he “almost always paid cash for everything”, the absence of any documentary evidence of payments, or receipts, tells against the acceptance of a person’s evidence about which I have, otherwise, major doubts. Therefore, the best that the Court can do is to take into account, in a general way, that there were contributions made to the conservation and improvement of the jointly owned property by the plaintiff (including the payment of body corporate fees of which a part would have gone to the general upkeep of the body corporate’s common property which must, necessarily, have some effect on the maintenance of value of each of the units in the body corporate complex).

77. [77]
    With respect to contributions by the defendant to the maintenance and improvement of Unit 15, the plaintiff’s written submissions contend that she paid $1,082.00 for body corporate fees. Her own submissions do not add to this aspect. Nor does anything the plaintiff led in evidence.

78. [78]
    Since it is impossible in these circumstances to attribute an increase in the capital appreciation of the value of the property simply in proportion to expenditure outlaid, it can only be concluded, in a general way, that the direct contribution to the conservation and improvement of Unit 15 was greater on the plaintiff’s part than on the defendant’s part. Against that, given the conclusion that Unit 15 is legally jointly owned and that no trust is imposed on it, the fact that the plaintiff had remained there “rent free” since October 2007 means that he has had the value of that benefit to now – a benefit calculated by the defendant to be $23,660.00, and not challenged as a “calculation” by the plaintiff. The defendant has had good reason not to relocate to Unit 15, given that domestic violence order issued in 2007 in her favour did not expire until December 2009. I accept that figure for the purpose of assessing the defendant’s contribution to the joint property.

Sections 291 to 296 (inclusive) of the PLA

79. [79]
    I have already canvassed the financial contributions made directly to the acquisition, and then to the conservation and improvement of Unit 15.

80. [80]
    Thus, the first matter to be considered under this umbrella is what contribution if any did each party make, directly or indirectly, to the acquisition, conservation or improvement of the property of the solely owned property of each of themselves, and the other. Then, it is necessary to consider that approach to the financial resources of each of themselves, and the other.

81. [81]
    Because s 291(3) of the PLA states that it does not matter whether such property or such financial resources still belong to either of the de facto partners when the court is considering the contributions made, it will be necessary to deal with the history of the parties and their property.

82. [82]
    I have already reached the conclusion that each party has treated the household furniture which each presently has as their own – and that this has always been the case – and that the value of such is, as best as the Court can tell from the evidence led, not greatly disparate. Hence, it is unnecessary to consider in any greater detail what each paid for such furniture over time.

83. [83]
    Turning then to the cars, apart from the 1996 Toyota Corolla Csi Seca, I have already concluded that there is no necessity to consider the value of any such vehicles further because of the negation each by the other, in terms of the contribution to the property pool.

84. [84]
    As for that excluded car, as earlier noted, there is a dispute about whether that was a gift, or whether it was held on trust.

85. [85]
    It is not disputed that the cost of that car was $12,500.00 and that it was purchased in mid-2000. With respect to the document admitted to be signed by the defendant, despite the defendant’s protestations about the circumstances of her so signing it, the actual terms “agreed” left all “operating” liability concerning that car entirely in the defendant’s hands. This is quite contrary to the notion that she was to hold the car “on trust” for the plaintiff, since there is no evidence that he was ever to use it. Further, in an early affidavit, the plaintiff stated that she agreed to buy the car and pay for it “on the basis” that the defendant “could repay me at some later date”. Clearly, from the plaintiff’s perspective, it was a device to enable him to avoid liability with respect to the defendant’s use of it; but the plaintiff cannot both have the advantage of that and the actual legal responsibility that beneficial ownership otherwise involves. While the plaintiff denied it, the defendant did assert that the plaintiff told her that it was so registered in order that his former wife could not take the vehicle. In the end, whatever reason was behind the plaintiff’s actions, considering that I accept that the defendant paid almost 100% of all registration, insurance and other summary costs and other expenses associated with it and that it was damaged beyond repair in an accident and that the defendant received an agreed payout value on it from an insurer – and that that insurance was effected by the defendant alone – I conclude that the car was treated for all purposes by both parties as if it was the property of the defendant. Thus, even if it were to be the case that the plaintiff was always the beneficial owner of it, it would be an appropriate matter to make an adjustment concerning this property so that it could be considered, for present purposes, as the defendant’s property. In which case, its payout value of $5,000.00 was the value of the car at the time when that sum was received. Necessarily, being money received and obviously spent – in the circumstances where there has been no tracing of where the money went – it is simply a part of the background to the ownership of property by each party during their relationship.

86. [86]
    Given the other conclusions that I have also reached earlier, it is unnecessary – apart from the next consideration – to consider any other property which belonged to either party prior to the determination of the present property pool.

87. [87]
    With respect to the plaintiff’s “cash” assets and the assets of MI5 Group Pty Ltd which constitute his financial resources, I accept, in general terms, the analysis done by the defendant in her written submissions which shows that, for instance, if the plaintiff did in truth make all the financial contributions set out in paragraph 25 of his written submissions, then they exceed the income that he generated during the period of co-habitation if one has reference to the plaintiff’s tax returns. The Schedule of Comparative Incomes prepared by the defendant shows that from 1 July 1996 to 30 June 2007, the plaintiff had a taxable income of $131,318.00 (only), while the defendant’s was $488,474.00. Even taking the taxable income of MI5 Group Pty Ltd into account over the same period, only an additional $57,224.00 was available and significant amounts of that must have been used to purchase assets owned from time to time by this company, given that the nett asset position of it as at 30 June 2007 was $45,031.41. This was also in circumstances where the company’s statements record that the plaintiff’s creditor position was then $124,376.11 (almost the total of his taxable income in those years). If one looks wider at the plaintiff’s financial resources, he, through MI5 Group Pty Ltd, controlled monies which were either placed in term deposits or used to purchase shares. Of course, the money that went into either, or both, of those kinds of property was not a direct investment of the plaintiff’s income which was the subject of his tax returns, because such assets were at all times owned by the corporate entity, even if the source of the funds was the otherwise generally unexplained “loans” from the plaintiff to the company.

88. [88]
    Given the immense difficulty in determining what the plaintiff obtained from sources other than his employment by Camel Australia Pty Ltd or his profit-sharing income from Camel Australia Pty Ltd which was payable to MI5 Group Pty Ltd, and given the fact that funding sources other than Camel Australia Pty Ltd are either difficult to determine, or show (apart from the case of Autotec) there was no explanation for any significant sources for money relevantly available to the plaintiff through whatever source in addition to what I have identified, it is probable that the plaintiff has greatly overstated his contributions, particularly to homemaking. He has, for instance, not identified any personal account from which “cash” sums were withdrawn for household expenses. For each of the years 2004-2005, 2005-2006, and 2006-2007, the plaintiff had a taxable income of “nil”, “nil” and “$816.00”, while MI5 Group Pty Ltd had losses for the first and last of those years and a minimal profit for the middle year. Besides, although the plaintiff asserts that “he” had, in the 2005-2006 year, cash and shares in MI5 Group Pty Ltd, he also asserts that he “lost” almost that total value by “his” investment in Autotec, noting that it was not until mid 2007 that “he” received the cheques from KJP of $70,000.00 (in total). Thus, both directly, through CBD, and indirectly, through her greater support to homemaking and other assistance (discussed later) – most dramatically during the Autotec phase, the defendant has enabled the plaintiff to use MI5 Group Pty Ltd to build up its assets by term deposits and share investments, from which it received constant interest and dividend payments, all to the plaintiff’s ultimate benefit. It is, in the absence of any proper accounting, impossible to be in any way accurate in a calculation of the monetary extent of this indirect contribution, other than to say it is substantial.

89. [89]
    What is important to understand with respect to the plaintiff’s “investment” in Autotec and the eventual reimbursement made “to” the plaintiff is that, from the independent evidence given by KJP, it shows (since I accept his evidence in full, there being no reason for him to be other than honest about those figures at this time) that there were simply two cheques paid by KJP of $15,000.00 and $55,000.00 in mid-2007 besides 2 sums of $3,000.00 each made in 2007 (there being a dispute about the timing only), and no “cash” was paid which might otherwise account for large cash sums allegedly held privately by the plaintiff. Both cheques were stated to have been paid to the plaintiff’s personal Suncorp Account. Further, I accept the evidence that the defendant supported the plaintiff whilst that initial investment was undertaken by the plaintiff. This has the consequence that the sums then received by the plaintiff from KJP were, at least indirectly, financial contributions to the plaintiff by the defendant in that they were the “return” (at least partially) which the plaintiff received as a result of being able to make the original investment in Autotec because he was so supported by the defendant. A further context to this period is the “plaintiff’s” investment in Autotec of at least $80,000.00. The company claimed a “loss” on an investment in Autotec of approximately $80,000.00 in the 30 June 2010 financial statements. It has not been explained how the payments by KJP, totalling $76,000.00, are, or are not, associated with the “loss”. The defendant’s evidence is that the original investment coincided with the plaintiff’s request to meet payments for “everything”, so as to support him “totally”. I accept this evidence. It demonstrates the “support” that the defendant provided to enable the plaintiff to make “his” various “investments”, including those in other MI5 Group Pty Ltd’s assets. The payments from KJP were received later in this period and no bank or other such statements were ever produced which contradicted the defendant’s evidence, which also showed that the inheritance monies were invested and apparently not accessed for cash in this period.

90. [90]
    Before moving to home making contributions, it is necessary to deal with the issue of the amount of $20,000.00 which was located by the defendant in Unit 15 during 2007.

91. [91]
    The plaintiff’s written submissions contend that the defendant “took” $10,000.00 which “plainly belonged” to the plaintiff. For the defendant’s part, it was contended in her written submissions that, since she paid $10,000.00 (of the $20,000.00 that she removed from Unit 15 in or about June 2007) to the plaintiff on or about 26 June 2007, the parties had each accepted that they had a right to a half of only that sum of $20,000.00.

92. [92]
    A number of problems attend this matter of the cash sum of $20,000.00. As sought to be explained by the plaintiff, that cash was handed to him by KJP, or at least “mostly” so. Given that I have accepted KJP’s evidence about this – which was put to KJP as being $15,000.00 in cash, and denied – the source of that $20,000.00 cash is therefore unknown; but, in any event, it is not relevant to any homemaking contribution given the actual time that it was “located” and taken by the defendant. Secondly, the defendant’s contention in her evidence was that, when she found the $20,000.00 cash, she believed it to be “ours”. This was even though she conceded that she did not put it there, she did not know that it was there and she did not know from where it had come. Later on, she asserted that the arrangement which led to the payment of $10,000.00 “back” to the plaintiff was that the plaintiff had “agreed” to each of them having $10,000.00 each. A complicating feature that arises is that the defendant associates this cash with the fact that she asked the plaintiff for the money back which had been channelled from CBD to MI5 Group Pty Ltd and that, since the plaintiff said that he “knew nothing about it”, the defendant then went to a solicitor and asked what she should do, not knowing whether it could be “the” CBD money.

93. [93]
    Since I have already taken into account the fact that the CBD money was not “paid out” to the defendant from MI5 Group Pty Ltd and that, therefore, it could be reasonably taken into account as providing part – if not an equal part – of the “deposit” for Unit 15, it would be double counting to take it into account again as money which in fact belonged to the defendant.

94. [94]
    Accordingly, I conclude that the $20,000.00 was property that the plaintiff had as at that the time of the end of the relationship and that $10,000.00 of it was removed by the defendant and kept by her. I do not accept that there was any agreement by the plaintiff to the defendant lawfully retaining $10,000.00 of it.

95. [95]
    Turning then to the contributions to homemaking, it must be stated at the outset that there were not any children “of” the de facto partners in this case.

96. [96]
    Therefore, it is simply each party’s contribution to homemaking that needs to be considered.

97. [97]
    As I indicated in a general way earlier, I accept that the defendant made more contributions than the plaintiff to the day to day homemaking in so far as it concerned the relevant relationship. This is not only because there is a considerable disconnect between the amounts which the plaintiff says he did contribute to all matters and the sums available to him to achieve that expenditure but also because it is clear that the defendant did have evidence expressly demonstrating that she made contributions, at least as identified in her EFTPOS documentation. I also accept her evidence that she made further such contributions in cash. It is important that, in the plaintiff’s written submissions, while it was conceded that the defendant made some contributions for food and groceries, in the equivalent paragraph concerning the plaintiff’s contributions, there was nothing of an equivalent kind, the identified contributions being limited simply to phone, electricity and insurance. While this in part flowed from the absence of any evidence which was able to be advanced by the plaintiff about his “cash” expenditure, it does demonstrate to me an inability generally to account at all for this kind of expenditure, leaving the Court in considerable doubt as to whether much money was spent at all by him in the homemaking area, apart from payment of some of the recurring expenses (to which the defendant was also a contributor).

98. [98]
    The counter-concern that I have is that I conclude that the defendant’s assertions of the extent of her contribution being significantly greater than what the EFTPOS documentation shows are an exaggeration of her contribution. This is particularly so where her children lived with her for some periods and where she concedes that not only was food and groceries bought for them but that amounts were also spent upon their necessary expenses for clothing and education. In addition, the defendant, unlike the plaintiff (who had arranged his financial affairs to reduce, significantly, his maintenance obligations), paid substantial child support payments when the children were not with her. Finally, with respect to such additional cash, she declined in her affidavit to go into detail about such transactions.

99. [99]
    In reaching this conclusion, I am supported by evidence of the considerable increase in weekly expenditure on food and groceries that occurred after October 2007 when the relationship had ceased, even though I have accepted that she paid cash as well as utilising the EFTPOS facility. Nevertheless, I do not draw a conclusion from that increase that the plaintiff was, prior to that time, making a “significant” contribution to food and groceries in addition to any other contributions he was making. The plaintiff could have led, but did not, evidence concerning his expenditure on food and groceries. To attempt to draw some wide ranging inference from the defendant’s expenditure, particularly given the imprecision of both parties’ evidence – but particularly the plaintiff’s – concerning expenditure in this area, does not satisfy the requirement that the only inference that can be drawn is that which is more probable than other inferences which are open. Such an inference does not support any substantial contribution by the plaintiff to the combined homemaking at the times when they were both in occupation of the same unit, as well as when they occupied different living spaces but were still in their relationship. As to the latter times, I accept that the defendant’s contribution to at least the meals and cleaning up was, again, substantially greater than the plaintiff’s.

100. [100]
     The difficulty, in the end, is in determining to what proportionate extent this inequality extended. Doing the best I can from the limited information that was presented to the Court and which I accept (as already indicated), I assess the proportion, for the whole of the relationship, as being in the order of 60% as contributed by the defendant and 40% as contributed by the plaintiff. This division partially results from the concession by the defendant that the plaintiff liked to attend to his own clothing and the inevitable consequence from the times that the parties were living in separate residences that cleaning, washing and other such household duties (other than meals and washing up) would have been solely the responsibility of the particular occupier of that residence. Although the plaintiff has contended that the defendant paid only $28,200.00 for food and groceries, if one adds a “cash” input into that figure and considers contributions other than foodstuffs, doing the best from such inadequate data, the monetary figure that could be notionally applied to contributions to the joint property of this kind may well be in the order of well over twice that figure. But, as elsewhere, I am shackled by the paucity of evidence, particularly as to value.

101. [101]
     In monetary terms, given that this was not a short relationship, the homemaking contributions cannot simply be translated into a percentage of the net value of the property pool. I will consider the effect, monetarily, later.

102. [102]
     As for child support, I have already, although in a general way only, considered the child support in the past. But, in any event, s 294 of the PLA simply directs attention to child support provided, or to be provided, by a de facto partner “for” a child of such partners. This does not apply here.

103. [103]
     Before moving to the additional matters under ss 297 to 309 of the PLA, I conclude that the effect of any proposed order on the earning capacity of the de facto partners will not be adverse to either party. For her part, the defendant continues in employment, although that was in some doubt immediately prior to the case being heard; and, while I conclude that she does have some health problems, I consider that the nature of them is not significant in terms of her continued earning capacity, particularly bearing in mind the limited time that she has been required to take time off work and the kinds of physical activities she presently undertakes, even acknowledging that those are referable to keeping her in the best possible health (given the circumstances).

104. [104]
     For the plaintiff’s part, there is nothing in the effect of any proposed order which has an adverse effect on his earning capacity.

105. [105]
     Therefore, the determination of the contribution based entitlements to the pool of assets shows that the only substantial asset involved is that which is jointly owned. In reaching a conclusion, I am constrained in the ways that I have described. The global approach that I have adopted, therefore, seems inevitably to follow. Bringing into account what each has contributed, directly and indirectly, to both assets and resources, there should be a finding of equality, noting that the superannuation interests and the financial resources essentially negate each other also. This is because the various contributions to the collection of both property and resources as they have existed from time to time during the relationship, as well as the 60:40 contribution by the defendant to the home making contributions, leads to the conclusion that there is a balancing out of the otherwise greater contributions made by the plaintiff in actual monetary terms to the conservation, improvement and payment of a greater proportion of the mortgage obligations, of the jointly owned property, there being equivalent contributions to the initial sum of approximately $25,000.00 on the conclusions that I have reached. Such balancing brings the value of the plaintiff’s exclusive use into account, and the factor that the defendant’s significantly greater income has permitted the plaintiff to “divert” assets into resources owned by MI5 Group Pty Ltd in a quite substantial way, noting that the plaintiff’s cash and the company’s resources are now worth greater than $100,000.00 in total, especially compared to the defendant’s meagre assets. In such a calculation I have also brought the sum of $10,000.00 retained by the defendant into account, and have noted the payout figure for the car of $5,000.00.

106. [106]
     In summary, therefore, with respect to the jointly owned property, being Unit 15 and the joint NAB account, subject to the matters to be considered next, the same should be divided equally. There is no need for any alteration of property interests because Unit 15 is truly jointly owned.

Sections 297 to 309 (inclusive) of the PLA

107. [107]
     Necessarily, the age and state of health of each of the parties has been, at least partially, taken into account in determining the future earning capacity of each. As it arises for direct consideration under s 297 of the PLA, there is no particular reason to consider that some additional adjustment should be made because of either of those factors. The plaintiff’s health is good and he is a resourceful person so far as generating an “income” for himself is concerned.

108. [108]
     Considering the income, property and financial resources of each party, it is clear that while the defendant has considerably more superannuation entitlements than the plaintiff, the plaintiff’s own financial resources are significant, in particular arising from the gross assets in MI5 Group Pty Ltd (ignoring, for reasons covered, the substantial “liabilities” figure in the company’s statements for the latest financial statements). There is no reason to determine that any further adjustment should therefore be made on the basis of justice and equity. As to the physical and mental capacity for each of them for appropriate gainful employment, to the extent to which it has not been taken into account already, it does not generate any further requirement that there should be an adjustment.

109. [109]
     The necessary commitments of each partner to himself or herself is no greater for one than the other. With respect to each of the party’s children for which support is still being given, the level of commitment to them is determined simply on the basis of what each wishes to give by way of further support, it not being contended by any party that such children are not presently able either to earn an income for themselves or need any substiantial sum which shows that the cost to one party is in significant excess of the cost to the other party.

110. [110]
     Concerning standards of living, the standard at which each party is living in at the moment is in no way significantly different from that which each party was living in during the relationship. There is nothing that would require any adjustment to the initial decision about equal entitlement which this factor would require.

111. [111]
     The contributions made by each to the income and earning capacity of the other has effectively achieved an equality, for the reasons already analysed. Additionally, the Court has considered the length of this de facto relationship and sees no reason for any further change because of it. Similarly, the de facto relationship itself has not affected the ongoing earning capacity of either of the de facto partners and there is no other fact or circumstances which the justice of the case requires be taken into account.

112. [112]
     In summary, having determined that no adjustment should be made to the jointly owned property of Unit 15 or the joint account of approximately $50.00 held with NAB, I determine that the result reached is just and equitable taking all the factors into account that have been canvassed in this case. Section 286 of the PLA only empowers an adjustment of the parties’ property interests, not resources, although the latter are relevant to the extent that an adjustment is, or should be, made.

Orders

113. [113]
     Since the Court is required by s 337 of the PLA to make orders that, as far as practicable, will end the financial relationship, there is no reason in this case that there need be any delay in giving effect to an order to sell Unit 15 and divide the proceeds – after deduction of all relevant expenses – equally between the parties: see s 333(1)(b) of the PLA. Neither party has demonstrated an ability to raise sufficient money to buy the other out on a cash basis, or to raise a loan to achieve that end.

114. [114]
     Since it is not clear from either party’s written submissions that they would co-operate in a timely sale of Unit 15, my interim determination is that it may well be appropriate in this case for a trustee or, trustees, to be appointed for sale of that property and for a distribution of the net proceeds: see s 333(i)(g) of the PLA. But since this issue has not been addressed by either party, I will give time for both parties to make submissions as to the form of orders that ought be made. Necessarily, those orders will also have to consider the equal division of the small sum of approximately $50.00 in the NAB joint account.

Costs

115. [115]
     Section 341 of the PLA states, as the prima facie position, that a party to such proceeding as this bear the party’s own costs. While s 341(2) states that, however, if the court is satisfied that are circumstances justifying it making an order, it may make an order for costs it considers appropriate, taking into account the factors mentioned in s 341(4) of the PLA, I do not consider it appropriate in this case to make any order for the costs of this proceeding. The income, property and financial resources of each party is not so disproportionate that such an order should be appropriate. Furthermore, there is nothing in the conduct of the parties in relation to the proceeding which would make it unjust, or unfair, to have each party bear their own costs. Lastly, there is no failure of a relevant kind to comply with the previous order and no party has been wholly unsuccessful.

116. [116]
     Nevertheless, it may well be that a party has made an offer under the Uniform Civil Procedure Rules 1999 and thus s 341(4)(f) of the PLA may have been triggered. I, therefore, will order, when handing down this decision, that the parties have leave to make further submissions, if any, within an appropriate time, concerning costs.

117. [117]
     I do not consider that the way in which the proceedings were originally initiated, or the steps then taken by each party, should lead to a conclusion different from that I have tentatively reached with respect to the application under the PLA. But, again, the leave with respect to submissions on costs leaves open for either party to challenge that interim determination.