MAURICE LAFFIN [2024] SADC 130

Applicant: MAURICE LAFFIN Counsel: MR B MCCLOUD - Solicitor: SOUTHERN VALES LEGAL Respondent: ALISON MAHER In Person Hearing Date/s: 19/02/2024, 20/02/2024, 21/02/2024, 22/02/2024, 23/02/2024 File No/s: CIV-22-5522 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MAURICE JAMES LAFFIN v ALISON MARY MAHER [2024] SADC 130 Judgment of his Honour Judge Burnett 15 October 2024 EQUITY - TRUSTS AND TRUSTEES - IMPLIED TRUSTS - CONSTRUCTIVE TRUSTS - DE FACTO RELATIONSHIP FAMILY LAW AND CHILD WELFARE - THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION - JURISDICTION - DE FACTO RELATIONSHIPS - EXISTENCE OF RELATIONSHIP The applicant, by an originating application, seeks an order pursuant to ss 69 and 70 of the Law of Property Act 1936 (SA) (LPA) for the sale of a property that the applicant owns with the respondent as tenants in common. In her response, the respondent says that the applicant and her were in a de facto relationship such that the Federal Circuit and Family Court of Australia (the Family Court) has exclusive jurisdiction to determine the matter. Both the applicant and the respondent claimed that they have made financial contributions that should be taken into account upon the division of the proceeds of any sale of the property. The applicant claims that the cost of improvements that he carried out on the property should be taken into account. The respondent claimed adjustments should be made to take into account that she contributed a deposit of $100,000 to the purchase of the property and that she continued to pay the mortgage and rates after the applicant left the property. Held: (1) A de facto financial cause must be instituted in the Family Court: s 39A of the Family Law Act 1975 (Cth) applied. The de facto provisions apply to the exclusion of any law of a State to the extent that such a law deals with financial matters of the parties to a de facto relationship arising out of the breakdown of that relationship: s 90RC(2) of the Family Law Act applied. (2) Exclusive jurisdiction is vested in the Family Court in determining the property interests of de facto partners: JAB v The Executors of the Estate of the late MST (2022) 12 QR 214 applied. Therefore, if a de facto relationship existed, the court could not make an order under -- 1 of 36 -- s 69 of the LPA as that would fall within the exclusive jurisdiction of the Family Court: Tansell v Tansell (1977) 19 SASR 165 applied. (3) This court has jurisdiction to determine whether a de facto relationship existed: R v Ross-Jones; ex parte Green (1984) 156 CLR 195; Norton v Locke (2013) 284 FLR 51; Theodorou v Provatidis [2022] SADC 16 applied. (4) The applicant and the respondent were not in a de facto relationship: s 4AA of the Family Law Act considered. Their individual lives had not merged into life as a couple: Jonah v White (2011) 45 Fam LR 460; Sinclair v Whittaker [2013] Fam CAFC 129 applied. (5) The circumstances in which a court will refrain from making an order for sale under s 70 of the LPA where standing has been established under that section are limited: DKL v LYK [2019] SASC 100 applied. There are no such circumstances in the present case. (6) The applicant and the respondent held the property on constructive trust as tenants in common to repay their respective contributions: Muschinski v Dodds (1985) 160 CLR 585 applied. It is unconscionable for either party to hold their interest as a tenant in common without taking into account the proper contributions of the other that are in excess of their own contributions. (7) The respondent is entitled to an adjustment in her favour in the division of the net proceeds of sale to reflect the payment of the $100,000 towards the purchase price of the property. (8) The Court should strive to give effect to the notion of practical equality, rather than pursue complicated factual inquiries which will result in relatively insignificant differences in contributions: Baumgartner v Baumgartner (1987) 164 CLR 137 applied. Giving effect to that principle, the costs expended by the applicant in improving the property can be fairly dealt with by balancing out those costs with the disparity in payment of the mortgage and rates so that no further adjustment should be made. Law of Property Act 1936 (SA) ss 69, 70; Family Law Act 1975 (Cth) ss 4AA, 4AA(1), 4AA(2), 90RC(2), referred to. Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Ho v Powell (2001) 51 NSWLR 572; Australian Securities and Investments Commission v Rich (2009) 75 ACSR 1 [449]; (2009) 236 FLR 1; [2009] NSWSC 1229; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11; Hurst v Koszewski [2019] SASC 67, JAB v The Executors of the Estate of the late MST (2022) 12 QR 214; [2022] QSC 226; Theodorou v Provatidis [2022] SADC 16; R v Ross-Jones; ex parte Green (1986) 156 CLR 185; Goldsworthy v Goldsworthy (1982) 31 SASR 121; Norton v Locke (2013) 284 FLR 51; Sinclair v Whittaker [2013] Fam CAFC 129; Jonah v White (2011) 45 Fam LR 460; DKL v LYK [2019] SASC 100; Muschinski v Dodds (1985) 160 CLR 585 [1985] HCA 78; Baumgartner v Baumgartner (1987) 164 CLR 137 [1987] HCA 59; Parij v Parij (1997) 72 SASR 153; Leane v Dalbon [2020] VSC 461; Sivritas v Sivritas (2008) 23 VR 349, considered. -- 2 of 36 -- MAURICE JAMES LAFFIN v ALISON MARY MAHER [2024] SADC 130 Introduction 1 These proceedings concern an application by the applicant, Maurice Laffin, for an order pursuant to ss 69 and 70 of the Law of Property Act 1936 (SA) (the LPA) for the sale of a property that the applicant owns with the respondent at 12 Grant Road, Reynella (the Property). Both the applicant and the respondent own a one half share of the Property as tenants in common. 2 The applicant in his originating application sought, after payment of expenses relating to the sale of the Property, and other amounts owing in respect of the Property such as mortgage, rates, and taxes, that the net proceeds be distributed as to the first $295,000 to the applicant and the balance divided equally between the applicant and the respondent. In his opening, counsel for the applicant withdrew the claim for the $295,000 and stated that the applicant now sought that the net proceeds of sale be distributed equally, although the applicant be given authority to conduct the sale of the Property. The applicant agreed that there needed to be adjustments made to the amounts that the parties would receive, taking into account the contribution made by the respondent to the purchase of the Property, the money spent by the applicant in improving the Property and the disparity between the parties as to mortgage and rate contributions, adjusted because the applicant was effectively evicted from the Property and the respondent received money from tenants and boarders that contributed to the payment of the mortgage. 3 In her response to the originating application, the respondent alleged that she and the applicant had been in a de facto relationship such that the appropriate court to determine the matter was the Federal Circuit and Family Court of Australia. In her closing address, the respondent stated that notwithstanding her contention that the parties were in a de facto relationship, she wanted the Property to be sold. The respondent also submitted that if the Court found that there was no de facto relationship, she should be paid back the $100,000 that she contributed to the purchase of the Property. She disputed the amount of the entitlement that the applicant should receive for work done on the Property and said she should receive credit for the additional mortgage payments that she made. Issues for determination 4 The following issues arise for determination: (1) Does this court have jurisdiction to hear the matter, which depends on whether or not the parties were in a de facto relationship; (2) If the parties were not in a de facto relationship, is the applicant entitled to an order under ss 69 or 70 of the LPA for the sale of the Property; and -- 3 of 36 -- [2024] SADC 130 2 (3) What adjustments, based on a constructive trust, should be made to take into account the payments and contributions made by the parties including: (a) The deposit of $100,000 contributed by the respondent through the inheritance that she and her children received; (b) The money spent by the applicant on improvements; and (c) The disparity in the mortgage and rate repayments, the effective eviction of the applicant from the Property and the receipt by the respondent of payments from tenants and boarders. The Trial 5 The respondent was not represented at trial, although she had been earlier in the proceedings. The applicant was represented by counsel. 6 The applicant gave evidence about all aspects of his relationship with the respondent, the circumstances in which they came to purchase the Property, the improvements made to the Property and the costs of such improvements, the mortgage and other payments made by the parties and his eviction from the Property. The applicant denied that they were in a de facto relationship. That is a matter of law for the Court to determine, after considering the evidence of the parties relating to their relationship. He admitted that he had been in a relationship for a period of time with the respondent but said that relationship had ended before they purchased the Property. 7 The applicant was not sophisticated or articulate. He struggled in cross-examination and would sometimes not answer the question that was asked of him. I formed the view that this was not because he was deliberately being obstructive but because he did not listen to the question. The applicant sometimes made gratuitous and somewhat aggressive comments towards the respondent. These matters caused me to have caution in relation to his evidence. I do not consider that the applicant deliberately lied or was not credible. The main source of controversy relating to his evidence concerned the issue of whether the applicant and the respondent had a de facto relationship within the meaning of that term under the Family Law Act 1975 (Cth) (Family Law Act). I generally accept the applicant’s evidence about the circumstances of their relationship. The issue as to whether or not the parties were in a de facto relationship is not straightforward given that there was obviously a relationship of some type between the applicant and the respondent. 8 The applicant’s evidence was consistent with objective evidence. His evidence was supported to a limited extent by the evidence of Mr Matthew Pollard, who had purchased the neighbouring property. Mr Pollard undertook work with the applicant on the fence that divided his property with the applicant and respondent’s property. He also, from time to time, made observations of the living -- 4 of 36 -- [2024] SADC 130 3 conditions of the applicant. I accept Mr Pollard as an honest and reliable witness. He was an independent witness. He gave evidence about the work that he undertook on the fence and the observations that he made. 9 The respondent also gave evidence. Again, the main area of controversy in relation to her evidence concerned whether the parties were living in a de facto relationship. There was only limited objective support for her evidence. Her evidence was also directly contradictory to some of her own written documents and affidavits that she had affirmed. As set out later in these reasons, this inconsistency caused me to have doubts about the credibility and reliability of the respondent as a witness on this issue. 10 In his closing address, counsel for the applicant invited me to draw a Jones v Dunkel1 inference from the failure of the respondent to call her two children to give evidence. They were born in March 2000 and March 2002 respectively and were therefore 23 and 21 years old at the time of trial. It was submitted that they were old enough to give evidence about their observations concerning the living arrangements between the applicant and the respondent. 11 The rule in Jones v Dunkel2 states that an adverse inference may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected. In Jones v Dunkel, Menzies J stated:3 In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. 12 Kitto J stated:4 It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched. 13 Davies A-JA (dissenting on the facts) in Ho v Powell5 explained the principle as follows: The rule permits evidence to be given greater weight and an inference or inferences to be more readily drawn when the other party who might have called evidence to the contrary has chosen not to do so. In Commonwealth of Australia v McLean (Court of Appeal, 31 1 (1959) 101 CLR 298; [1959] HCA 8. 2 Ibid. 3 Ibid, 312. 4 Ibid, 308. 5 (2001) 51 NSWLR 572 [76]; [2001] NSWCA 168. -- 5 of 36 -- [2024] SADC 130 4 December 1996, unreported), [(1996) 41 NSWLR 389]. Handley JA and Beazley JA said ... the rule typically applies to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default. 14 Austin J in Australian Securities and Investments Commission v Rich6 indicated that there are three conditions required for the application of the principle: (1) the missing witness would be expected to be called by one party rather than the other (which implies that the witness must be available to give evidence); (2) his evidence would elucidate a particular matter, which is a live matter at the trial; and (3) his absence is unexplained… 15 The onus of establishing an explanation for the absence of the witness, for the purposes of the principle in Jones v Dunkel, rests on the party against whom the principle would operate.7 16 The principles in Jones v Dunkel were summarised in Kuhl v Zurich Financial Services Australia Ltd:8 The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. [citations omitted] 17 In this case, the respondent’s children, Kayla and Riley were 13 and 11 years old respectively in 2014 when the respondent alleges her relationship with the applicant commenced and therefore 19 and 17 years old in 2019 when she alleges the relationship ended. Clearly, Kayla and Riley were in a position to make relevant observations about the relationship and to give evidence about those observations. Their evidence would be relevant to the issue whether the applicant and the respondent were in a de facto relationship. It was not put to the respondent in cross-examination that they should be called. It is understandable that the respondent did not wish to call her children to give evidence in a dispute between her and the applicant which did not involve them. However, there was no explanation as to why they were not called as witnesses, given that at the time of the trial they were both adults. In these circumstances, I consider that an adverse inference is available and that I can consider the failure to call Kayla and Riley when assessing the evidence of the applicant and the respondent as to the nature 6 (2009) 75 ACSR 1 [449]; (2009) 236 FLR 1; [2009] NSWSC 1229. 7 Ibid [457]; see also Cross on Evidence, at [1215] and Smith v Samuels (1976) 12 SASR 573. 8 (2011) 243 CLR 361, [63]; [2011] HCA 11. -- 6 of 36 -- [2024] SADC 130 5 of their relationship. However, that issue is determined by my assessment of the evidence of the applicant and the respondent, and the adverse inference caused by the failure to call Kayla and Riley is of little weight. Jurisdiction 18 From 1 July 2010, South Australia conferred jurisdiction upon the Family Court in respect of de facto financial causes.9 Pursuant to s 39A of the Family Law Act: (1) A de facto financial cause may be instituted under this Act in: (a) the Federal Circuit and Family Court of Australia (Division 2); or (b) … (c) the Supreme Court of the Northern Territory of Australia or (d) a court of summary jurisdiction of a participating jurisdiction; (2)-(4) … (5) A de facto financial cause that may be instituted under this Act must not, after the commencement of this section, be instituted otherwise under this Act. 19 A “de facto financial cause” is defined in s 4 of the Family Law Act to include: (c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or ... (g) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs. 20 Section 90RC(2) of the Family Law Act provides that Parliament intends that the de facto financial provisions are to apply to the exclusion of any law of a State or Territory to the extent that the law deals with financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships. 21 The effect of these matters is that exclusive jurisdiction is vested in the Federal Circuit and Family Court (and the other courts referred to in s 39A) in relation to determining the property interests of de facto partners. This court does not have jurisdiction to determine the property interests of such partners.10 The claims of an applicant in a de facto relationship for equitable relief in relation 9 See Hurst v Koszewski [2019] SASC 67, [17]. 10 JAB v The Executors of the Estate of the late MST (2022) 12 QR 214, [74]; [2022] QSC 226. -- 7 of 36 -- [2024] SADC 130 6 to property are de facto financial causes and thus within the exclusive jurisdiction of the Commonwealth courts.11 22 It follows that, if the applicant and the respondent were in fact in a de facto relationship, the claim by the applicant for sale of the Property is a de facto financial cause because it is a proceeding between parties of a de facto relationship, after the breakdown of that relationship, that seeks to distribute property of the parties. The order for sale and the division of the proceeds of sale is distributing the property of the parties to a de facto relationship. Similarly, the respondent’s claim for an adjustment of the amount to be distributed based on either an equitable claim or an agreement is, in such circumstances, also a proceeding with respect to the distribution of property of the relationship. 23 Therefore, if a de facto relationship existed between the applicant and the respondent, then this Court would not have jurisdiction to hear the proceedings because exclusive jurisdiction would vest in the Federal Circuit and Family Court. 24 Two questions therefore arise: (1) does this court have jurisdiction to determine whether there was a de facto relationship between the applicant and the respondent; and (2) if so, were the parties in a de facto relationship. Jurisdiction of the court to determine whether a de facto relationship existed 25 This question was considered by Judge Thomas in Theodorou v Provatidis12 where Her Honour held, referring to the decision of the High Court in R v Ross- Jones; ex parte Green13 that “it is clear law that every court of limited jurisdiction has the authority and duty to decide whether the controversy brought before it lies within its jurisdiction”. Therefore, where, as in the present case, the respondent had raised a defence that pleads lack of jurisdiction, the court is not obliged to immediately refrain from proceeding further and should determine whether the condition is satisfied and whether the court has jurisdiction to proceed.14 This was the approach taken by the Full Court in Tansell v Tansell15 where the court upheld the objection to jurisdiction and held that the State Supreme Court did not have jurisdiction to direct the sale of the matrimonial home under s 69 of the LPA because that fell within the exclusive jurisdiction of the Family Court. The Full Court in Goldsworthy v Goldsworthy16 also heard the preliminary question of jurisdiction and ultimately decided on the facts of that case, that the Supreme Court had jurisdiction to determine the matter. Parker J in Hurst v Koszewski17 referred to a decision of the Full Federal Court in Norton v Locke18 where that court held that it had jurisdiction to embark upon proceedings for the purpose of determining 11 Ibid, [86]. 12 [2022] SADC 16, [24]. 13 (1984) 156 CLR 185, 193. 14 Theodorou v Provatidis [2022] SADC 16, [24]. 15 (1977) 19 SASR 165. 16 (1982) 31 SASR 121. 17 [2019] SASC 67, [24]. 18 (2013) 284 FLR 51, [43]. -- 8 of 36 -- [2024] SADC 130 7 whether the relevant jurisdictional facts existed - whether there was a de facto relationship. 26 Uniform Civil Rules 2020 (SA)(UCR) also mandate the same approach. UCR 67.6(7) provides that if a respondent contends that the Court does not have jurisdiction to hear and determine the action or otherwise objects to the Court’s jurisdiction, the respondent must plead the objection on the defence and file at the same time as the defence an interlocutory application seeking the hearing and determination of the objection. Legal principles relating to a de facto relationship 27 A de facto relationship is defined in s 4AA of the Family Law Act which provides: Meaning of de facto relationship: (1) A person is in a de facto relationship with another person if: (a) the persons are not legally married to each other; and (b) the persons are not related by family (see subsection (6)); and (c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. Paragraph (c) has effect subject to subsection (5). Working out if persons have a relationship as a couple. (2) Those circumstances may include any or all of the following: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) the ownership, use and acquisition of their property; (f) the degree of mutual commitment to a shared life; (g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; (h) the care and support of children; (i) the reputation and public aspects of the relationship. -- 9 of 36 -- [2024] SADC 130 8 (3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. (4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (5) [Not relevant] (6) [Not relevant]. 28 The ultimate question under s 4AA of the Family Law Act is whether having regard to all the circumstances of their relationship, the parties (in this case the applicant and the respondent), had a relationship as a couple living together on a genuine domestic basis. It follows from the wording of s 4AA that the list of circumstances set out in s 4AA(2) is not exhaustive. It also follows that the court must give such weight as it considers appropriate to any particular circumstance.19 The reference in s 4AA(1) to a “genuine domestic basis” has led the courts to hold that the core of a de facto relationship was the notion of “coupledom which was the merger of two individual lives into life as a couple”.20 Purchase of the property Evidence about the purchase of the Property 29 The applicant gave evidence that the Property was purchased on 2 December 2015 at auction. He said that at the time he was living in Marden and the respondent was living at Happy Valley. He said that the Property was an investment property which was purchased so that they would each have something to give to their respective children. At the time, the applicant was 54 years of age and was employed at Bridgestones and earning income but did not have any savings for a deposit and owed some debts. The respondent had some savings as she had received an inheritance but was not working or earning any income other than a disability pension. The respondent was then 47 years of age. The applicant gave evidence that he was interested in buying an established property with her provided they could have separate living areas. 30 He said that to bid at the auction, they needed to be pre-approved for a loan. They engaged a mortgage broker, Anette Totthill, to assist in this process and ultimately obtained pre-approval to bid up to $450,000. 31 The applicant said that the respondent proposed that he borrow $20,000 from the respondent’s children, Kayla and Riley, to pay off his debts. He said that he would need to pay off his debts if he and the respondent were to obtain finance. The applicant did borrow that money from Kayla and Riley and later repaid that sum. 19 Sinclair v Whittaker [2013] FamCAFC 129, [54], Theodorou v Provatidis [2022] SADC 16, [37]. 20 Jonah v White (2011) 45 Fam LR 460, 471-472; Sinclair v Whittaker [2013] FamCAFC 129. -- 10 of 36 -- [2024] SADC 130 9 32 The applicant gave evidence that a deposit in the sum of $100,000 was paid. That money came from two sources: $50,000 came from the respondent through the inheritance that she received from the estate of her mother and $50,000 came from the respondent’s children through the inheritance they received from the estate of their father. 33 The applicant said that at the time that he and the respondent purchased the Property, they prepared a written agreement (exhibit A7). He said that they prepared the agreement together. He said that a new agreement was prepared when the amounts changed in clause 2 (which dealt with the contributions that they each made to mortgage and other outgoings). He said that about three or four new agreements were prepared reflecting the change in the amounts that the applicant and the respondent paid for the rates and utilities. The applicant and the respondent paid equal amounts for the mortgage, but the respondent paid an extra proportion of the rates and other outgoings (she was paying two-thirds of these amounts) because her children were living at the Property with her. 34 The applicant denied, when it was put to him in cross-examination, that he prepared the agreement and presented it to the respondent. 35 In cross-examination, the applicant denied that the Property was bought for them to live in as a couple. He said that they were not a couple at the time that they purchased the Property. The applicant confirmed his earlier evidence that the Property was bought for investment purposes. 36 The respondent gave evidence that initially she was looking to buy a block of land and build a house on that land for her and her children. She said that at this stage, she was seeking a property for her future and the future of her children. She said that she and the applicant decided that if she purchased an established house, he would purchase it with her. She said that they agreed to combine resources. She said that she had received an inheritance of $80,000 from her mother and her children had received $50,000 as an inheritance from the estate of their father. She said that she was not working but the applicant was working. She said that she and the applicant agreed to buy the Property and agreed that they would each own one half of the Property. She said that it was also agreed that the applicant and her would share the mortgage equally but that she would pay two-thirds of the rates and utilities associated with the Property and the applicant would pay one third as her two children were living with her. She said a written agreement was prepared by the applicant that reflected the oral agreement that they had reached. 37 The respondent said that she contributed $100,000 to the deposit for the purchase of the Property, with $50,000 coming from her inheritance and $50,000 from monies that her children had lent her. She said that the agreement was updated by the applicant on about 15 occasions as a result of changes to the costs of the rates and utilities. The respondent also agreed that the applicant borrowed money from her children to discharge his debts and that he repaid that money. -- 11 of 36 -- [2024] SADC 130 10 38 The respondent said that in her discussions with the applicant, she said that she was intending for her children to take over the Property but said that she had not discussed with the applicant how that might work. The respondent agreed that they purchased the Property in December 2015 and at that time, the applicant was living with his ex-partner in Marden. 39 The respondent agreed in cross-examination that she and the applicant were careful to keep their finances separate and that was reflected in the number of agreements that were prepared when their contributions to the utilities changed. 40 The terms of the agreement were as follows: Agreement between Alison Maher, Maurice Laffin, Riley Sutton & Kayla Sutton RE; 12 Grant Road Reynella Property. (1) Any money used by any person for the deposit for property shall be returned upon sale of the property if it is chosen to sell at a later date. (2) The mortgage of property including all associated costs such as council rates, water rates, emergency levy rates, house and contents insurance & may include utilities and internet shall be paid into a special joint account weekly at a agreed rate (plus or minus adjustments to percentage rates) of approximately $239 per week by Maurice & $258 by Ali until such time as another source of income is available. (see item 3) (3) Should another source of income become available from either Riley or Kayla (or a boarder) the per week costs as described in item 2 shall be divided accordingly. To avoid doubt a new source of income is defined as minimum of 30 hours week work. Records shall be kept in regards to all persons who contributed towards property costs as described in item 2 and item 4. (4) Changes to property must be agreed on unanimously by all parties and cannot be unreasonably refused. All parties shall have equal rights in the property and their views and opinions respected. If someone wishes to purchase something for the property and no one has any objections to it this shall be recorded as an expenditure for the property and the person can claim this expenditure if the property is sold at a later date. (5) In the event of death by either Maurice or Ali the following shall apply; (a) All entitlements of input into the property by either Maurice or Ali shall immediately go to their children as per will. (b) In the case of Maurice an agreed amount as determined by records and receipts that is fair and reasonable shall be paid out by Ali and children into his estate. Maurice is then removed from the title and mortgage. The costs for removing Maurice from the title shall be paid from the agreed amount. (c) In the case of Ali all entitlements of input as determined by records and receipts shall go to her children and if her children are not capable of maintaining Ali share of mortgage repayments and associated costs Maurice must take over these payments and shall be recorded as extra inputs into the property. The property shall not be considered for future sale until both children reach 18 years old and all agree to this course based on the -- 12 of 36 -- [2024] SADC 130 11 circumstances at that time if financial hardship warrants this. Their names shall be placed on the title where Maurice's name shall remain if they have not attained the age of 18 in the event of Ali's death. (6) Should in the future any party or parties wish to remove themselves from this agreement they must be reimbursed accordingly for their input into the property. (7) Should any breach of this agreement take place and cannot be resolved this will entitle the party who is not in breach to be given the right to initiate sale of the property if they choose to. (8) These terms and conditions may be changed at any time but only with a unanimous agreement by all. 41 The agreement did not specify what would happen in the event that the Property was sold except that it provided that the money used as a deposit would be returned to the person who contributed that sum. 42 On 25 September 2017, the respondent submitted an application to the Department of Social Security for social security benefits. In that application, she declared that the information contained in the form was complete and correct. She acknowledged that providing false or misleading information is a serious offence. In that form, the respondent said that she started sharing accommodation with the applicant from 2 December 2015 and that they were purchasing the house for investment purposes and that they intended to share the accommodation until the Property was sold. Findings about the purchase of the Property 43 I make the following findings about the purchase of the Property. 44 First, the applicant and the respondent settled on the purchase of the Property on 2 December 2015. The purchase price was $355,000 with $274,000 borrowed from the mortgagee. The respondent contributed $100,000 to the deposit for the purchase price. She borrowed $50,000 from her children to pay that sum. At the time of the purchase, the applicant and the respondent were not living together. There was no controversy about any of these matters, except in relation to the proper characterisation of the money that came from the respondent’s children. The circumstances of the purchase of the Property in which the respondent was named as a purchaser and the children were not, suggest that this money was loaned to her by her children for the purposes of completing the purchase. It was never contemplated that the children would obtain an interest in the Property or that they were making a loan directly to the applicant and the respondent jointly. 45 Secondly, the terms upon which the Property was purchased were reduced to writing. The respondent agreed that the written agreement reflected the oral agreement that the parties had made. The written agreement, apart from recording that any deposit monies would be returned on the sale of the Property, and recording what would happen on the death of the applicant and respondent, otherwise does not specify what would happen on the sale of the Property. -- 13 of 36 -- [2024] SADC 130 12 The agreement was amended a number of times to reflect the different amounts charged for the rates and utilities. I did not need to resolve how many times the agreement was amended, other than to find that it was amended on a number of occasions. 46 Thirdly, the applicant and the respondent held the Property as tenants in common. That is clear from the certificate of title. 47 Fourthly, the Property was purchased as an investment for the applicant and the respondent, even though they would both live in the Property. I have come to this conclusion for a number of reasons. They are: (a) The applicant and the respondent were not living together at the time of the purchase. They each were not otherwise able to purchase a house because the applicant did not have any money for a deposit and the respondent did not have income to meet mortgage repayments. It was therefore convenient and necessary for them to pool resources; (b) The agreement records that the applicant and the respondent were carefully keeping their finances separate and were intending that the contributions made by each person would be recorded and ultimately repaid. The rates and utilities were apportioned according to their estimated usage; and (c) The respondent, in an application to the Department of Social Security, acknowledged the Property was purchased for investment purposes. 48 Ultimately, in the circumstances of this case, there is not necessarily a binary choice between characterising the purchase of the Property as being for investment purposes and characterising the purchase as being for the purpose of having somewhere to live. The purchase may have and did have elements of each purpose. Whatever the purpose, the more critical enquiry is what were the living arrangements between the applicant and the respondent. 49 Fifthly, the Property was valued as of 28 November 2022 in the sum of $570,000 (exhibit A23). The Commonwealth Bank of Australia (the CBA) holds a mortgage over the Property. The amount owed to the CBA is currently about $244,000. In addition, the sum of about $6,000 in outstanding rates is owed to the City of Onkaparinga. Evidence relating to a de facto relationship. 50 Both parties gave evidence about the nature of their relationship. The applicant and the respondent have never married. 51 The applicant said that he first met the respondent in February 2012. He said that at that time he was living at his parents’ house at Christie Downs and was a part-time carer for his mother. He said the respondent was living at Happy Valley. He said that they formed a causal relationship at that time. He said that the -- 14 of 36 -- [2024] SADC 130 13 relationship became intimate in late 2012 but they kept it secret from others. He said that the family home of his parents was sold in about mid-2014 and he moved into a caravan at the Happy Valley home of the respondent. He said that he moved in there because he had nowhere else to live. He said that he lived in the caravan which was in the front yard. The applicant said that he moved out of the caravan in early 2015 and rented a house in Marden with an ex-partner. He said that he signed a lease for that property. He said that he was in the caravan for about 5 months. 52 He said that when he lived in the caravan, he did not pool resources with the respondent, and they kept everything separate. He said that he was renting the caravan from his brother but believed that he was also making some payment to the respondent for having the caravan parked at her property. He said that during the time that he was living in the caravan from about 2014 to early 2015 he was in an intimate relationship with the respondent, and they were going out together. He said that relationship ended when he moved to Marden. He said that he signed a 12-month lease to live at that property. He said that during this period he did not have any intention of moving back in with the respondent. He said that during this period he was seeing her about once every two weeks. 53 He said that when they purchased the Property in December 2015, they were not in a relationship. He said that they had remained friends. He said that their thoughts were that they would see how living in the same house went and whether they would form a new relationship. He said that they had sex from time to time but not regularly. He said that they would have sex once every six months. 54 He said that from December 2015, they kept separate finances, and he did not spend any money on her, and she did not spend any money on him. He said that they would sometimes be asked out together but not necessarily as a couple and went on overseas holidays together. He said that they had two overseas holidays together. He said that they went to Thailand in about 2014 and to Malaysia in about 2017 or 2018. He accepted that they may have also gone to Thailand on that occasion. He said that when he travelled to Malaysia/Thailand in 2017 or 2018, he would have shared a room with the respondent as it was cheaper but there was no sex involved. He also agreed that they went to Sydney at Christmas in 2016 and stayed with her brother. 55 He said that they did not cook for each other. He did not cook for or look after the respondent’s children. They had separate cars. They each did their own laundry. 56 The applicant gave evidence that the general sleeping arrangements were that he lived and slept downstairs where all his furniture was placed, and the respondent lived upstairs. He said that in winter it was very cold downstairs, and he would sometimes sleep upstairs in the respondent’s bedroom. He said that on such occasions, the respondent would generally sleep on the lounge but that on about a dozen occasions they shared the upstairs bedroom. -- 15 of 36 -- [2024] SADC 130 14 57 The applicant said that they agreed that the expenses related to the Property were paid 67% by the respondent and 33% by him. They contributed equally to the mortgage. He said that he stopped paying the mortgage in 2019 because the respondent was behind in her payments. There was also a six month mortgage free period to October 2020 because of COVID mortgage relief. 58 The applicant left the Property in about August 2020. 59 In cross-examination, the applicant was asked about some emails which it was suggested showed their relationship to be more intimate than he had suggested. He was referred to an email dated 19 January 2017 (exhibit R10) where the applicant wrote: Hi Hun Forward photo on to whoever you like. Maurice xx 60 The applicant said that just showed that they were in a friendship and that he was in the habit of addressing friends in that way. 61 The applicant was also referred to an email dated 30 April 2014 (exhibit R14). That email talked about their relationship and how the applicant saw it progressing. The email refers to problems they were experiencing and whether there was any future in their relationship. The applicant admitted that they were in a relationship at that time but were living in separate houses. 62 The applicant was also referred to emails passing between him, and the respondent dated 25 August 2015 (exhibit R15). One of those emails refers to doubts about how content they will be in the future and that their relationship was in limbo. The emails referred to their relationship. At the time of these emails, the applicant was living at Marden. 63 The applicant was referred to an email dated 3 March 2020 (exhibit R16) which refers to “this break up”. The applicant says that he was referring to the breakup of their friendship. He said that there was no breakup of a relationship at that stage. 64 The applicant was referred to a funeral notice that was placed in the paper in relation to the death of his mother on 12 September 2014 (exhibit R22). That notice refers to Mrs Laffin being the loving mother of 5 couples including the applicant and the respondent. He said that at that time, he was living in a caravan at the respondent’s house because the family property was being sold and he had nowhere else to live. He said that they were a couple at that time. 65 The applicant said that he and the respondent were good friends and would sometimes go out to watch live bands together but were not a couple. He said that -- 16 of 36 -- [2024] SADC 130 15 his friendship with the respondent started to deteriorate badly after 2017 when she became angry all the time. 66 Mr Pollard owned, but did not live in, the neighbouring property. However, he regularly performed work on that property from the time that he purchased it in 2014. He said that he saw the applicant work on the property quite frequently. He observed the applicant undertaking painting and maintenance. They performed work on the fence together. He agreed that they each contributed about $4,000 to the cost of the fencing. He visited the house from time to time. He said in the last 18 months before the applicant moved out, he observed that he was living in the garage. He had not observed that previously. He said that he did not observe any affection or a romantic or couple-type relationship between the applicant and the respondent. I place little weight on that evidence given that neither the applicant nor the respondent gave evidence that the applicant was living in the garage. Further, it is difficult to make observations about the nature of a relationship from brief interactions. 67 The respondent gave evidence that she met the applicant in 2012 and they formed a romantic and sexual relationship at that time. At that time, she was living at Happy Valley and he was living with his parents. They would see each other on weekends. She said that he moved into a caravan at her place in Happy Valley in about September 2014 (or shortly thereafter) when his mother died. She said that he lived in the caravan from that time to the beginning of 2015. She said that at the time that he lived in the caravan, he was staying with her in her bedroom and used the caravan as an office. 68 She said that they were living separate lives from 2012-2014. She said that when they went to Thailand in 2014, they were living separately. 69 She said that at the time that the funeral notice was placed in the paper for the death of the applicant’s mother in September 2014 (exhibit R22), she viewed the applicant and herself as a couple as they spent time together, had a sexual relationship and went out together as a couple to places and see friends. 70 During the time that they lived together before 2015, she said that they would look after themselves in relation to food. She said that she did all the work associated with the general care of the house. She said that she would look after the children who were living with them, although the applicant would attend Riley’s football games on a Saturday. She said that they split up for about a month when he moved to Marden but then got back together again. 71 She said that they had relationship counselling in 2017. 72 She said that after they bought the Property, the applicant shared the upstairs bedroom with her until about 2019 when the relationship ended, and she moved to the downstairs bedroom. She said the applicant moved out of the Property in July 2020. She agreed that she took out an interim intervention order. -- 17 of 36 -- [2024] SADC 130 16 73 She said that she would cook for herself, and he would cook for himself, and they would each buy their own food and groceries. She said that when they went on holidays, they would pay for their own airfares. 74 The respondent agreed that the applicant took no part in caring for her children. She agreed that he did not provide for them on a day to day basis, practically or financially. 75 She agreed that she and the applicant kept their financial affairs separate and had separate financial responsibilities. 76 She said that during the course of the relationship, they had sexual relations regularly until about 2018. 77 The respondent said that they would go out together as a couple and would visit friends’ houses. She said that they would spend Christmas together at her sister’s place. She agreed that at the time of the email dated 30 April 2014 (exhibit R14), they were seeing each other. At the time of the emails dated August 2015, she said that they were seeing each other, but having problems. 78 In cross-examination, the respondent was taken to an affidavit that she swore in these proceedings on 25 August 2022. That affidavit states: … when the applicant and I bought the house in 2015 we were not in a relationship. In 2016 we became a couple and remained so until 2019 … 79 The respondent agreed that this statement was not true and said that she made that statement because she did not want to get into trouble with Centrelink. 80 In a subsequent affidavit filed in these proceedings, the respondent said she said that was in error and that she and the applicant were in a relationship at the time that the Property was purchased. In the affidavit she said: … I realised on reflection that I mistakenly referred to the commencement of the period of cohabitation with the applicant to be the date or purchasing the property the subject to the dispute which was not the beginning of the relationship together. 81 That provides a different explanation, namely a mistake, from the evidence given in Court where she said that she made the false statement because she did not want to get into trouble with Centrelink. 82 The respondent was also taken in cross-examination to an application to Centrelink that she completed on 25 August 2017. In her first affidavit, she said that this application was completed prior to the commencement of their relationship in 2016. In the application to Centrelink (exhibit A9), the respondent said that: • the applicant was a housemate (and not a boyfriend); -- 18 of 36 -- [2024] SADC 130 17 • she and the applicant were purchasing the house for investment; • she and her two children lived upstairs while the applicant lived downstairs; • she and the applicant did not share the same bedroom; • she did have a sexual relationship with the applicant; • she did not plan to go on holiday with the applicant in the future; • relatives and friends did not consider her and the applicant to be partnered; • she and the applicant bought separate food and shopped separately and did separate washing; • her relationship with the applicant differed from that of a married or de facto couple in that it was a business arrangement. 83 The respondent declined to answer questions relating to the application to Centrelink, invoking the privilege against self-incrimination. Findings as to the circumstances of the relationship between the applicant and the respondent 84 I make the following findings about the circumstances of the relationship between the applicant and the respondent without deciding, at this stage, whether that relationship constituted a de facto relationship within the meaning of s 4AA of the Family Law Act. 85 First, the applicant and the respondent commenced a causal relationship in 2012. At that time, they were living in separate houses. Their relationship was intimate. The relationship continued in much the same manner until about September 2014. Therefore, when they went to Thailand together in mid-2014, they were not living together. There was no dispute about any of these matters and both the applicant and the respondent gave evidence to that effect. 86 Secondly, in about September 2014, following the death of his mother, the applicant moved into a caravan at the then residence of the respondent at Happy Valley. He stayed there until the beginning of 2015 when he moved into a house at Marden with an ex-partner. The applicant and the respondent were involved in an intimate relationship in September 2014. There is no dispute about those matters. There is a dispute about the nature of their living arrangements at that time. The applicant said that he lived in the caravan during this period whilst the respondent said that he shared her bedroom. I accept the applicant’s evidence on this issue. The caravan was owned by the applicant’s brother to whom the applicant was paying rent for its use. The caravan had been relocated to the Happy Valley residence. The applicant was also paying rent to the respondent for the caravan’s placement on the land at Happy Valley. These matters are consistent with the caravan being placed on the property for the purpose of the applicant residing in the caravan. It is also inherently plausible, given that they were -- 19 of 36 -- [2024] SADC 130 18 intimately involved at this time, that the applicant would sleep in the respondent’s bed from time to time. These findings are also consistent with the respondent’s statement in her affidavit that she and the applicant first became a couple in 2016. I accept the applicant’s evidence that they did not pool or share resources during this period prior to early 2015 and kept everything separate. 87 Thirdly, in the period between early 2015 to December 2015, the applicant and the respondent lived in separate houses. The applicant lived at Marden with an ex-partner and the respondent continued to live at Happy Valley. There is no dispute about these matters. There is a dispute about whether or when they resumed their relationship during this period. The applicant said that they did not resume their relationship but continued to see each other during this period. The respondent said that they had a break for about 1-2 months but then resumed their relationship. Again, I prefer the evidence of the applicant on this topic. There is no objective evidence supporting the respondent’s contention. It is contrary to the affidavit that she filed in these proceedings. 88 Fourthly, the applicant and the respondent bought the Property together as tenants in common in December 2015. I have already made findings in relation to the circumstances in which the Property was bought. 89 Fifthly, the applicant and the respondent lived together at the Property from December 2015 to about July 2020 when the applicant moved out. The applicant and the respondent had some form of relationship as it was undisputed that they had sex, at least occasionally, went out together on occasions, spent Christmases together and went on one holiday overseas, one holiday interstate and a couple of holidays within South Australia. They also had some counselling in 2017 but I accept the submission of the applicant that the mere fact of attending counselling does not provide any indication of the purpose of the counselling and whether it was relationship counselling as claimed by the respondent or as claimed by the applicant was for the purpose of them being able to live together in the Property. The two emails sent from the applicant to the respondent in this period are not determinative. I do not consider that the email dated 19 January 2017 (exhibit R10) by itself confirms the nature of their relationship during this period as it is not clear whether the applicant was merely expressing himself in an affectionate way. The email dated 3 March 2020 (exhibit R16) may also refer to the breakup of their relationship as friends. 90 Sixthly, the applicant and the respondent kept their finances separate during the period from December 2015 to July 2020. This is evident from the agreement by which they purchased the Property which apportioned rates and utilities two- thirds to the respondent and one-third to the applicant, based on estimated usage, with the respondent being responsible for the use of her children. Both the applicant and the respondent agreed that their finances were kept separate. The applicant and the respondent did not support each other financially. -- 20 of 36 -- [2024] SADC 130 19 91 Seventhly, the applicant and the respondent lived independently. They cooked for themselves and did their own shopping. They both gave evidence to that effect. The respondent was wholly responsible for the care of her children. The applicant watched Riley play football but otherwise was not involved in their care. The applicant and the respondent did their own washing. One area in dispute concerned their sleeping arrangements. The applicant said that he usually slept downstairs while the respondent said that up until 2019, they shared the upstairs bedroom together. I prefer the evidence of the applicant on this subject. I do so for two reasons. First, I generally prefer the evidence of the applicant to the respondent. Secondly, in the application to Centrelink, the respondent said that they did not share the same bedroom and the respondent, and her two children lived upstairs while the applicant lived downstairs. That accords with the evidence of the applicant. Evidence about the payments of the mortgage and rates and utilities 92 The agreement required the respondent to pay two-thirds of the rates and utilities and one-half of the mortgage repayments, with the applicant paying the balance. The agreement was amended from time to time to reflect the changes in the amount of the rates and taxes. 93 The applicant gave evidence that he stopped paying the mortgage repayments in about December 2019. He said that at that time, he noticed that the respondent was behind in her mortgage repayments and stopped paying so that she could catch up and they would be equal. He said that he applied for a COVID mortgage free period. When it was put to the applicant in cross-examination that that the bank statements (exhibit R18) showed that the respondent kept making mortgage payments through from December 2018 to 30 June 2019, he said that he would have to check the bank statements. 94 The respondent gave evidence that she and the applicant had a joint bank account from which they paid mortgage and utilities. They otherwise kept separate accounts from which they paid their respective everyday living expenses. The respondent agreed that she sent the email to the applicant dated 22 February 2018 (exhibit A32) was for the purpose of setting out the payments that were made and were required to be made under the agreement. The email from the respondent to the applicant dated 6 July 2019 (exhibit A33) is to similar effect. 95 The respondent gave evidence that the applicant ceased making mortgage payments at the end of 2019 and has not paid since that time. She said that he has also not paid for rates and utilities since that time. The payments from about that time have been made from the account in the respondent’s name. 96 The respondent agreed that she was currently about $6,000 in arrears in relation to council rates and that the council, the City of Onkaparinga, was contemplating legal action to recover the amount outstanding. The notice from the City of Onkaparinga (exhibit A25) shows that as of 12 January 2024, the arrears were in the sum of $6,921.74. -- 21 of 36 -- [2024] SADC 130 20 97 The respondent prepared a summary from bank statements of all mortgage payments made by the applicant and the respondent in relation to the mortgage over the Property (exhibit R36). There was no suggestion that this summary was not accurate. Findings about mortgage payments and rates and taxes 98 The summary prepared by the respondent shows the mortgage repayments made by the parties as of 2024. That summary shows that the total payments made by the respondent as of 2024 was $78,412.85 and the applicant was in the sum of $35,052.70. However, the applicant had not lived at the Property since July 2020 and had been subject to an interim intervention order that had the effect of preventing him from doing so. 99 The summary did not include payments of the rates and utilities. However, the evidence suggests that the parties kept accurate note of the payments that they each were making, evidenced also by the revised agreements that were prepared where the amounts paid for rates and utilities were adjusted. There is no evidence that either party is entitled to an adjustment for paying up to July 2020 more than their respective share of the rates and utilities under the agreement. Since the applicant ceased residing at the Property in July 2020, the respondent has been responsible for paying the rates and utilities, although as stated previously, she owes the sum of $6,921.74 as of 12 January 2024. Evidence about the circumstances of the applicant ceasing to live at the Property and the respondent’s receipt of income from boarders and tenants 100 The applicant said in about July 2019, he advised the respondent that he wanted to sell the Property. He said that he told her that it would take some time to put the Property in a condition where it would be suitable to sell. He said that he prepared a list of tasks that needed to be undertaken (exhibit A1) and undertook some of those tasks. He said that in February 2020, the respondent decided that she did not want to sell the Property. He said that she was not in a position to buy him out. The applicant agreed that he had received a note from the respondent. The note said that what the applicant had worked out might not fit the respondent’s plans and that she would either buy him out or they would sell the Property in its then current condition (exhibit A2). He said that he disagreed that the Property was in a condition where it could be sold. 101 The applicant gave evidence that in about August 2020, the respondent took out an interim intervention order against him. At the time, he was staying at a friend’s house and never moved back into the Property. He said that he tried to move back into the Property in 2021 after the intervention order had been revoked but the respondent had changed the locks, and her new boyfriend prevented him from moving back in. He said that the respondent got a boarder, Natasha Alford, who paid rent of $250 per week to the respondent. The applicant gave evidence that he had not lived in the Property since about July 2020. Since that time, the applicant said he has been in a very poor financial position. He said that he was -- 22 of 36 -- [2024] SADC 130 21 homeless for over a year and has been on Centrelink. He has not worked during that time. 102 The respondent gave evidence that her relationship with the applicant ended in about August 2019 and by that time had broken down irretrievably. The respondent said that Natasha Alford commenced living in the Property, on the recommendation of the police, in about July 2020. The respondent said that Natasha paid her rent of $150 per week. The respondent said that she lived in the downstairs bedroom and the applicant lived in her daughter’s old bedroom until he moved out in July 2020. The respondent said that Natasha stayed only for two months. She said that she had a further boarder, Roxanne, for a period of two months from August 2020. She said that Roxanne paid $150 per week. From October 2020 to January 2021, two friends, Steven Walsh, and Robyn Daniels, were boarders and each paid $25 per week as a contribution to utilities. There were two other friends, Jodie and Dan who stayed as boarders from about September 2021 to June 2022 whilst their house was being built. They also paid $25 each. She said that in April 2021, her carer, Shaun Harris moved in and began paying half of the mortgage. He is currently paying $374 per fortnight which represents one half of the mortgage costs. Findings as circumstances of the applicant ceasing to live at the Property and the respondent’s receipt of income from boarders and tenants 103 I make the following findings about the events since 2019. 104 First, the applicant in July 2019 suggested that the Property be sold but that work needed to be undertaken to maximise the sale price. That finding is consistent with the evidence of the applicant and broadly with the respondent’s evidence. It is also supported by documentary evidence. 105 Secondly, the applicant moved out of the Property in about July 2020. He has not lived in the Property since that date and nor has he contributed to the mortgage. The respondent has continued to live in the Property and has paid all mortgage repayments since that date. The applicant has experienced some periods of homelessness since moving out of the Property. There is no dispute about any of these matters. 106 Thirdly, the respondent has received income first from boarders and, since April 2021, from her carer who has resided at the Property. The payments from boarders were relatively modest and short term and defrayed some of the costs of the utilities. Since April 2021, the carer has paid one half of the mortgage costs of the Property. I accept the respondent’s evidence about these matters. 107 Fourthly, the respondent has not agreed to sell the Property. That is clear from her continuing to live in the Property. The parties have not been able to reach an agreement as to how the proceeds of the sale should be allocated. I note that in her closing submissions, the respondent agreed that the Property had to be sold. -- 23 of 36 -- [2024] SADC 130 22 108 Fifthly, the agreement no longer governed the parties’ relationship in relation to the Property. Both parties treated the agreement as at end. For example, the respondent has lived at the Property and paid the mortgage and utilities. The applicant could not be said to have equal rights to the Property when he was excluded from residing there. The respondent received the benefit of the income from boarders and tenants. Evidence about improvements to the Property undertaken by the applicant and the cost of those improvements 109 There was a great deal of evidence about the improvements undertaken by the applicant. The applicant was not claiming that the value of those improvements should be determined but limited his claim to the costs of the actual moneys expended by him in carrying out the improvements. He claimed the sum of $30,000 for those costs. 110 He gave evidence that he had ceased work at Bridgestones in September 2016 and had undertaken work on the Property from that date. He had received a payout of $125,000 in October 2016, which he used for these improvements and living expenses. 111 The applicant gave evidence that he obtained a job with Aceit couriers in January 2018 and worked there until about July 2019. In July 2019, he prepared an extensive list of work that needed to be carried out before the Property could be sold (exhibit A1). The applicant said that he prepared the list as a result of discussions that he had with a real estate agent. He estimated that the work would take about a year to complete, although not on a full-time basis. He said that the respondent did not agree to these works being carried out and said that she should either buy out the applicant or the Property should be sold in its current condition (exhibit A2). The applicant said that he started working on the tasks set out in this list in July 2019, but he did not work on it every day and there were periods where he needed treatment for a skin disease from which he was suffering. He said that the Property was in a state of disrepair and that work needed to be done for the Property to be sold. 112 The applicant gave evidence that for the purposes of these proceedings, he prepared a list of the work that he had carried out on the Property since 2015 and estimated that he had spent the sum of $30,244 in carrying out that work (exhibit A4). That cost does not include labour and time. He said that one of the persons he paid to do work was Steven Walsh, who was a friend of theirs and a qualified electrician and a handyman. 113 The applicant gave specific evidence about some of the larger items on the list. He said that item 8 was the replacement of outside continental blinds in the sum of $1,600. He said this was the cost of the new blinds. In relation to item 19, which involved extensive painting, he said that cost of $4,000 was the cost of paint and the cost of paying someone to help him paint. In relation to the cost of the new boundary fence (item 12), he said that he and his neighbour, Mr Pollard, equally -- 24 of 36 -- [2024] SADC 130 23 contributed to the cost of the new fence which was $8,000 in total. The applicant said that Mr Pollard wanted a new fence. Mr Pollard and the applicant undertook the work on that fence and the applicant claims in these proceedings the sum of $4,000, representing one half of these costs. Mr Pollard gave evidence confirming these matters. The applicant said that he paid this sum from the $125,000 that he received as a payout from his work. In relation to item 17 in the sum of $7,200 (extensive areas to front area including rendering), he said that this cost was part of the work that the real estate agent advised him to do and that it was an amount paid to a carpenter who rendered an invoice for that work (page 161 of exhibit A56). He said that it was paid for from his superannuation. Item 16 concerned work on blocked drains in the sum of $1,510 for which a plumber was paid in the sum of $1,060 and the sum of $450 was paid for the hire of a digger. These amounts are supported by receipts from the plumber and supplier (pages 162 and 163 of exhibit A6). The applicant said that there was raw sewage coming out which necessitated the need for this work. In relation to item 24 (repairs to the new fence which was damaged by a vehicle), he said that this cost represented additional work, paid to a contractor beyond what was paid by the insurance company for damage done to the fence when a vehicle rolled down and damaged the fence. It is supported by an invoice (page 164 of exhibit A6). In relation to item 25 in the sum of $102, the applicant said that sum involved the hire of a pressure washer to clean the driveway. That payment is supported by an invoice (page 166 of exhibit A6). In relation to item 26 (cost of paint and sealant) in the sum of $2,000, the applicant said that it was a broad estimate for various paint and sealant that he purchased. Some, but not all of this sum, is supported by receipts. In relation to item 20 (renovations to back shed in the sum of $500), the applicant described the work done to paint, carpet and waterproof that area so that it would be suitable for a teenage retreat. Photographs provided some independent support for that work. As to item 21 (repairs to pond area in the sum of $300), the applicant confirmed that he undertook that work. He denied that it was caused by him damaging the pond and said that the pond was mouldy. As to item 18 (repairs to bottom room from leaking water through ceiling in the sum of $1,180), the applicant said that it was the storm water that caused this problem, and the money was spent on a new pipe. 114 In cross-examination, the applicant agreed that he had not consulted with the respondent about replacing the blinds but said that it was necessary to do because the blinds were dysfunctional. The respondent in cross-examination said that she agreed work needed to be done to get the Property in a condition where it was ready for sale but says that was never discussed nor was a list ever given to her. She said that she accepted that the applicant was performing work over the course of 6-12 months in late 2019 and through to the early parts of 2020. She accepted that it was reasonable to put up a fence. She said that she accepted that half of the tasks had been undertaken. 115 The respondent denied that the applicant had spent $30,244 or that he had receipts for a large proportion of the costs. In her evidence, the respondent said she -- 25 of 36 -- [2024] SADC 130 24 was not aware of the applicant performing items 1-4 of exhibits A4, 6, 10, 13 15, 18, 20, 23, 24, 25, 28. 116 The respondent also complained that she had not been consulted or given her approval to the works being carried out. She agreed that she did not try to stop him from carrying out the work. She agreed that she had been given the list of jobs (exhibit A1) that the applicant proposed should be undertaken and that she could not unreasonably refuse to approve the work being done. 117 In summary, the applicant gave evidence that he spent $30,000 to make the improvement and repairs, such money coming from either his payout of $125,000 pre-2019 or from his superannuation of about $160,000 post mid-2019. Mr Pollard confirmed that he frequently observed the applicant working on the Property. Findings about improvements to the Property undertaken by the applicant and the cost of those improvements 118 I make the following findings. 119 First, I am satisfied that the applicant undertook the work set out in exhibit A4. The applicant described the work and why it was necessary. In a number of cases, the work was supported by objective evidence, namely receipts or photographs or in the case of the fence, the evidence of Mr Pollard. The two largest items, the erection of the new fence and repairs to the front area (which accounted for over one-third of the total costs claimed by the applicant) were both supported by external evidence. The respondent accepted that the applicant had worked on the Property for a significant amount of time, 6-12 months, in 2019-2020. The respondent also accepted about half of the items referred to in exhibit A4. I am satisfied that the applicant was giving an honest and reliable account of the work he undertook. 120 Secondly, I am satisfied that the estimate of the costs spent by the applicant is a reasonable estimate. There are a number of items, as I have set out in these reasons, which are supported by receipts or external evidence. There are a number of items which are not supported by receipts. The estimates for these other individual items appear reasonable and are not excessive. I accept that the applicant incurred costs in the sum of $30,244 in making improvements to the Property. 121 Thirdly, I accept that the applicant did not usually seek the approval of the respondent before carrying out the works and expending the money. I accept also that the respondent did not make any complaint about the applicant carrying out the works. That is consistent with the evidence of the applicant and the respondent. While this may be a breach of the agreement, there was no loss suffered, or claimed, by the respondent by the works being carried out. 122 Fourthly, the works have enhanced the value of the Property. The evidence suggests that the works were necessary to rectify repairs. As the applicant is not -- 26 of 36 -- [2024] SADC 130 25 claiming any amount for his time and labour, they represent good value for the improvements that were undertaken. Determination of jurisdiction 123 The issue of the jurisdiction of this Court to determine this dispute is dependent on the Court not finding that there was a de facto relationship between the applicant and the respondent. If the Court finds that the parties were in a de facto relationship, then the Court does not have jurisdiction to hear this claim or make any orders. The parties cannot consent to jurisdiction. The issue of jurisdiction is to be determined first by considering the evidence of the relationship against the specified criteria and then determining the nature of the relationship. Criteria applied in working out if the parties have a relationship as a couple. 124 Leaving aside the jurisdictional requirements, the following findings can be made from the evidence. 125 First, the applicant and the respondent have been in some form of a relationship from 2012-2019. That relationship can be divided into three stages. In the period from 2012-2014, they commenced a sexual relationship whilst living in separate homes. From about 2014 to early 2015, the applicant moved into the residence of the respondent at Happy Valley, although I have found that during this time he was predominantly living in a caravan out the front of the Property. From early 2015 to December 2015, the applicant and the respondent lived in separate houses and on my findings were not in a relationship during this period. 126 Secondly, at least some form of sexual relationship existed between the applicant and the respondent throughout the period from 2012-2019 (with the exception of the period between early 2015 - December 2015), although the extent of their sexual relationship over the period was in dispute. I do not have to resolve that matter. 127 Thirdly, the applicant and the respondent kept separate financial arrangements and had very limited financial dependence on each other. They paid for their own household items and daily expenditure and divided utilities on the basis of estimated usage. 128 Fourthly, although the applicant and the respondent purchased the Property together in December 2015, the terms of the agreement by which that purchase was made reflect more of a commercial agreement than a personal agreement. Mortgage payments were expressed to be equal, while rates and utilities are adjusted according to an estimated usage of two-thirds to the respondent and one- third to the applicant. Provision for further adjustment was made if the respondent’s children commenced earning an income. In the case of the death of either the applicant or the respondent, their entitlement was to be determined by the records and receipts of the amounts paid by that party and are to be paid to their estate of the deceased party. -- 27 of 36 -- [2024] SADC 130 26 129 Fifthly, although they were sharing the same house, I do not consider that the applicant and the respondent showed a great degree of mutual commitment to a shared life. They lived separate lives as was evident from their separate cooking, shopping, financial and sleeping arrangements. Weighed against this, I take into account that the applicant and the respondent went on some holidays together and would also go out socially together from time to time. 130 Sixthly, the relationship was not registered under the prescribed law of a State or Territory. I do not place any weight on this fact in the circumstances of this case. 131 Seventhly, the respondent was solely responsible for the care and welfare of her children. That has some, although not a great deal, of weight in that from 2015 onwards, both children were teenagers, and it would be expected that the respondent would be responsible for their care and maintenance. 132 Eighthly, no evidence was called by either party as to the reputational and public aspect of their relationship. There is only the self-serving evidence of the parties on this issue. In these circumstances, I am not able to make any finding on the reputational and public aspect of their relationship and regard this factor as neutral. Were the parties in a de facto relationship? 133 The applicant and the respondent were not legally married to each other and not related by family. The determination of the issue of whether they were in a de facto relationship is therefore dependent on whether having regard to all the circumstances of their relationship, the parties, in this case the applicant and the respondent, had a relationship as a couple living together on a genuine domestic basis. The circumstances described above are all relevant matters to be given weight. 134 There are three distinct periods of the relationship between the applicant and the respondent. The first is the period from the time they first met and formed a relationship in 2012 until about September 2014. During that time, the applicant and respondent lived in separate houses and maintained separate lives. The applicant was caring for his mother during this period. The applicant and the respondent were not living together on a genuine domestic basis in this period. The email dated 30 April 2014 and the funeral notice dated 12 September 2014 therefore cannot change that conclusion. 135 The second period is the period from about September 2014 to early 2015. During this period, the applicant lived in a caravan, owned by his brother, that he placed on the property then occupied by the respondent. He paid rent to his brother and to the respondent for that caravan. The applicant and the respondent were engaged in a sexual relationship during this period. On my findings, the applicant was living in the caravan. The lives of the applicant and the respondent were not -- 28 of 36 -- [2024] SADC 130 27 merged into life as a couple. They kept separate living arrangements and financial arrangements. 136 During the period between early 2015 to December 2015, the applicant and the respondent lived separate lives at separate residences, with the applicant living in Marden at an ex-partner’s house and the respondent continuing to live at Happy Valley. The applicant and the respondent were not living together on a genuine domestic basis in this period. The emails sent on 25 August 2015 therefore cannot alter that conclusion. 137 The last period of the relationship between the applicant and the respondent is the period between December 2015 and August 2019. This period was spent at the Property which they purchased as tenants in common in December 2015. It ended when the applicant moved out of the Property or when the respondent agrees that their relationship had ceased. 138 There are a number of circumstances which point to a conclusion that the applicant and the respondent were not living together on a genuine domestic basis during that time. There was no financial dependence or interdependence between the parties. The applicant and the respondent kept separate finances and for example, paid for their own food and groceries. The applicant and the respondent had separate living arrangements, with the applicant living in the downstairs area and the respondent living upstairs, although the applicant infrequently spent time upstairs. They cooked for themselves and looked after themselves separately on a domestic basis. 139 There are some matters which I regard as neutral, not pointing to the existence or denial of a de facto relationship. These matters include the agreement by which they purchased the Property. While in some circumstances, such an agreement would suggest a de facto relationship, the nature of the agreement and the division of the payment of rates and utilities and the numerous amendments of the agreement to reflect the changing amounts charged for utilities, are equally consistent with a more commercial or practical arrangement between the parties. Further, the circumstances in which the Property was purchased are also equally consistent with a commercial or practical arrangement between the applicant and the respondent as it is with a de facto relationship. The applicant had, at that time, steady employment and an income stream, whilst the respondent had an inheritance and therefore could pay a deposit but had no income. The desire of the parties, at the age of 54 and 47 respectively, to acquire an asset which they could leave to their respective children is also consistent with this commercial or practical arrangement between them. I also regard the fact that the respondent solely had the responsibility of looking after her children as a neutral factor, given the children were teenagers at the time. 140 There are some circumstances which point to a conclusion that the applicant and the respondent were living together on a genuine domestic basis during that time. The fact that they took some holidays together, including one overseas -- 29 of 36 -- [2024] SADC 130 28 holiday during this period, points to a relationship that extended beyond mere friendship and the occasional sex. The fact that at least on some occasions they also engaged in sex together points to a de facto relationship. The fact that they went out together on occasions might also point to such a relationship. The emails dated 19 January 2017 and 3 March 2020 are consistent at least with some form or relationship, but in my opinion are not determinative of the type of relationship. 141 I have had regard to the evidence given by the applicant and the respondent about the nature of their relationship. That is relevant as to factual matters and how they regarded their relationship, but their characterisation of the nature of their relationship is not determinative and it is a matter for the Court to determine whether the parties were in a de facto relationship within the meaning of s 4AA of the Family Law Act. 142 I have also had regard to the inconsistency between the evidence the respondent gave in her first affidavit on 25 August 2022, in which she said that they were not in a relationship when they purchased the Property in December 2015 but became a couple in 2016 and the evidence she gave in this Court and in a subsequent affidavit that they were in a relationship as at December 2015. I have also had regard to the differing explanations given by the respondent for this evidence in Court she said that she did not want to get into trouble with Centrelink while in a subsequent affidavit, she said that it was in error. The explanation that she did not want to get in trouble with Centrelink is not credible because if, as claimed in the affidavit, the relationship in fact commenced in 2016, that fact would still be inconsistent with the application made to Centrelink on 25 August 2017 and would render those statements false. 143 In the application to Centrelink in 2017, the respondent also described the applicant as a housemate and not a boyfriend and said that they were purchasing the house for investment and had separate living arrangements. 144 Taking all of the above matters into account, I do not consider that the evidence establishes that the applicant and the respondent were living together on a genuine domestic basis during the period from December 2015 to July 2020. They had not merged their two individual lives into life as a couple but were maintaining separate lives. Conclusion as to de facto status and jurisdiction 145 It follows that the evidence does not establish that the applicant and the respondent were at any time in a de facto relationship within the meaning of that term under s 4AA of the Family Law Act. It also follows that this Court has jurisdiction to determine the claim of the applicant and make orders relating to the sale and distribution of the proceeds of sale of the Property. -- 30 of 36 -- [2024] SADC 130 29 Entitlement to an order for sale under the Law of Property Act 146 The power to order sale of the Property in circumstances where a de facto relationship does not exist is provided for by ss 69 and 70 of the LPA. Section 69 provides: 69—Power to order partition or sale instead of partition (1) On any application for partition the court may order a partition of the said land or other property and may give all necessary or proper consequential directions. (2) On any such application if it appears to the court that, by reason of the nature of the property, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the absence, dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions. 147 Section 70 provides: 70—Sale on application of certain proportion of parties interested On any application for partition, if the party or parties interested individually or collectively, to the extent of one moiety or upwards in the property, request the court to direct a sale of the property and a distribution of the proceeds, instead of a division of the property between or among the parties interested, the court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly, and shall give all necessary or proper consequential directions. 148 The applicant has an interest of one moiety or upwards for the purposes of s 70 as he and the respondent jointly own the Property as tenants in common.21 That interest gives him standing to bring an application to make a request under s 70 for the sale of the Property. As Doyle J held in DKL v LYK:22 In the circumstances, s 70 provides that the Court shall direct a sale of the property “unless it sees good reason to the contrary”. Authority suggests that a person with standing under s 70 is entitled to an order almost as of right; that the Court’s discretion not to order a sale may be described as limited. The onus is on the party resisting the order to persuade the Court not to order sale. The application will not be refused merely on the grounds that it is opposed, on the grounds that the party resisting sale does not wish to the sale to proceed for sentimental reasons, or because they wish to purchase the property. Indeed, even the likelihood of hardship or unfairness may not suffice. (citations omitted) 149 The Full Court in Tansell v Tansell23 made a similar statement stating that the phrase in s 70 of the LPA, “unless it sees good reason to the contrary,” does not 21 DKL v LYK [2019] SASC 100, [533]. 22 Ibid, [534]. 23 (1977) 19 SASR 165, 168 per Bray CJ. -- 31 of 36 -- [2024] SADC 130 30 give the court a general discretion to refrain indefinitely from ordering partition or sale on compassionate grounds and at most permits a short delay in the execution of its orders for such reasons. 150 In her closing submissions, the respondent said that she wanted to sell the Property. It follows that there is no good reason for the Court not to order the sale of the Property. There was no evidence or submission as to why the Court should not order the sale of the Property. Constructive trust and the division of the proceeds of sale 151 In Muschinski v Dodds24 (Muschinski), the High Court found that the parties held their respective legal interests as tenants in common upon trust for each other to repay each of his or her respective contributions to the venture. Deane J (Mason J agreeing), held that it was appropriate to impose a constructive trust in the circumstances of that case to give effect to the general equitable principle which restores to a party contributions which he or she made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them. 152 In Baumgartner v Baumgartner25 (Baumgartner), the High Court held that the assertion by one party after the relationship had ended that the property was his beneficially to the exclusion of any interest at all of the other, amounted to unconscionable conduct which attracted the intervention of equity and the imposition of a constructive trust at the suit of that other party. 153 The underlying basis of the constructive trust is founded on unconscionable conduct. As Deane J held in Muschinski:26 Like most of the traditional doctrines of equity, it operates on legal entitlement to prevent a person from asserting or exercising a legal right in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct … the principle operates in a case where the substratum of the joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purpose of the relationship or the endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do. 154 In Baumgartner,27 Mason CJ, Wilson and Deane JJ held: Equity favours equality and, in circumstances where the parties have lived together for years and have pooled their resources and their efforts to create a joint home, there is much 24 (1985) 160 CLR 585 at 614; [1985] HCA 78. 25 (1987) 164 CLR 137 at 147-8; [1987] HCA 59. 26 (1985) 160 CLR 585 at 619-620; [1985] HCA 78. 27 (1987) 164 CLR 137, [39]; [1987] HCA 59; -- 32 of 36 -- [2024] SADC 130 31 to be said for the view that they should share the beneficial ownership equally as tenants in common, subject to adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind. The question which has caused us particular difficulty is whether any such adjustment is necessary in the circumstances of the present case to avoid any injustice which would otherwise result by reason of disparity between individual financial contributions. The conclusion to which we have come is that some such adjustment is necessary. … There are, however, other adjustments which should be made in the interests of justice. Those adjustments are all in favour of the appellant. The appellant should be entitled to receive from the proceeds of any sale of the property repayment of the contributions effectively made by him before and after the period during which the parties were living together and pooling their resources. That is to say, the appellant should be entitled to be paid the net proceeds of the sale of his unit ($12,883.41) which were devoted to the purchase of the property less the amount of payments of instalments under the mortgage over the unit which were made from the pooled earnings during the period of cohabitation. The appellant should also be entitled to be repaid the instalments under the mortgage over the property which he has paid during the period since the termination of the relationship between respondent and himself subject to an off-setting adjustment to reflect any benefit enjoyed by the appellant through use and occupation of the property during that period. 155 In the circumstances of this case, the parties hold the Property on constructive trust as tenants in common to repay their respective contributions. Those contributions might be financial contributions and also non-financial contributions.28 It is unconscionable for either the applicant or the respondent to hold their interest as a tenant in common without taking into account the proper contributions of the other which are in excess of their own contributions. If there is a disparity in contributions, the legal interest of the applicant and the respondent are not commensurate with their contributions to the Property.29 Thus in Muschinski, the equity held by the parties required the parties’ rights to be adjusted to compensate for the disproportion between their contributions to the property. The equity required their contributions to be recovered and the residue shared equally.30 Deane J held:31 The circumstances of the present case provide the necessary context for the operation of that general principle of the law of equity. Mrs. Muschinski's payment of the purchase price of the Picton property, which was transferred into the joint names of Mr. Dodds and herself, was made on the basis and for the purposes of their planned venture with respect to the land. The substratum of that planned joint endeavour was removed without attributable blame. Mr. Dodds is left as a half owner of the property in circumstances (i.e. the collapse of the joint endeavour) to which the parties did not advert and in which it was not specifically intended or specially provided that Mr. Dodds should enjoy such a benefit at Mrs. Muschinski's expense. In these circumstances, the operation of the relevant principle 28 Parij v Parij (1997) 72 SASR 153, 163, 164. 29 Leane v Dalbon [2020] VSC 461, [77]. 30 (1985) 160 CLR 585 at 622-623; [1985] HCA 78; DKL v LYK [2019] SASC 100, [268]. 31 Ibid, 620-621. -- 33 of 36 -- [2024] SADC 130 32 is to preclude Mr. Dodds from asserting or retaining, against Mrs. Muschinski, his one-half ownership of the property to the extent that it would be unconscionable for him so to do. 156 In the present case, the parties have submitted that the following are relevant contributions (all financial) to be taken into account which may give rise to such a disparity: • the payment by the respondent of $100,000 towards the deposit for the purchase of the Property; • the payment by the respondent of the whole of the mortgage and rates etc since 2020; and • the payment by the applicant of the costs of improvements. 157 There is no doubt that all of these matters, if established, provide a sufficient basis for an adjustment to be made and the imposition of a constructive trust. That much is clear from the passage quoted from Baumgartner that is reproduced above and from the statement by Kyrou J in Sivritas v Sivritas:32 In determining the scope of any Muschinski v Dodds constructive trust, a court can take into account direct financial contributions to the purchase price of the property and incidental costs such as stamp duty, registration fees, solicitors’ fees and bank fees. However, a court is not limited to such expenditure. It can also take into account the pooling of financial resources, other financial contributions even in the absence of pooling, contributions of labour and non-financial contributions or contributions in kind such as homemaking and parenting contributions. Further, the inquiry into whether the assertion by a party of his or her legal rights would be unconscionable can encompass events that occurred after the property was initially acquired. Expenditure on repairs and renovations of the property by a person asserting a constructive trust in respect of the property, where the expenditure is accepted by the legal owner of the property in the knowledge that it would improve the home and add to its value, can be considered as a contribution in quantifying the first person’s equitable interest under the constructive trust. (citations omitted) 158 In the present case, I consider that the respondent is entitled to an adjustment in her favour in the sum of $100,000, representing her payment of the deposit. There was no equivalent payment by the applicant of that sum. The only contentious issue in relation to the adjustment in that sum is that the source of these funds comprised the $50,000 from the respondent and the $50,000 from the inheritance that her children received from the estate of their father. However, it is clear from the circumstances of the use of these funds, that they were provided to the respondent so that the Property could be acquired by her and the applicant. The children did not have any interest in the Property. They provided the money to the respondent so that she could pay the deposit. The respondent may, and in fact is likely to, have an obligation to repay that sum to the children when she receives the $100,000. The $100,000 came from the respondent. In his closing 32 (2008) 23 VR 349, [132]; [2008] VSC 374. -- 34 of 36 -- [2024] SADC 130 33 submissions, the applicant accepted that there was little that they could be said in opposition to such a contention. The agreement also creates an obligation on the part of the applicant to return to the respondent the $100,000. 159 The respondent is also entitled to an adjustment in her favour as a result of the mortgage and rate payments that were made by her exclusively since 2020. In this regard, I also take into account that the sum of $6,921.74 owed to the City of Onkaparinga for outstanding rates as of 12 January 2024, which the respondent has failed to pay. I accept that the respondent submitted that she has received some payment from boarders and from her carer since 2021. I accept that it is also relevant to take into account that the applicant has been excluded from residing at the Property since 2020. 160 The applicant submitted in closing that the costs expended by the applicant in improving the Property can be properly and fairly dealt with by considering those costs to be balanced out by the disparity in payments of the mortgage and rates (the respondent having paid a greater share of those costs). I consider, in a broadbrush way, that such a balancing act is fair, and that no adjustment should be made in favour of the applicant for the costs of improvements or in favour of the respondent in relation to the disparity of mortgage and other payments. As Mason CJ, Wilson and Deane JJ held in Baumgartner,33 the Court should strive to give effect to the notion of practical equality rather than pursue complicated factual inquiries which will result in relatively insignificant differences in contributions and consequential beneficial interests. Conclusion 161 For the reasons which I have expressed, I have found that the parties were not in a de facto relationship within the meaning of that term in s 4AA of Family Law Act. Accordingly, this Court has jurisdiction to make the orders which I set out below. 162 It follows from the reasons that the following orders will be made: (1) pursuant to s 70 of the LPA, the Property be sold, and the net proceeds of sale be deposited into a trust account; (2) the applicant and the respondent hold the net proceeds of sale (after the discharge of the mortgage) on a constructive trust: (a) to pay the first $100,000 from those net proceeds to the respondent on the condition that she has paid all outstanding rates to the City of Onkaparinga, or in the event that those rates are not able to be paid by the respondent to deduct the outstanding amount from the $100,000 and pay the balance of 33 (1987) 164 CLR 137, [38]; [1987] HCA 59. -- 35 of 36 -- [2024] SADC 130 34 the $100,000 to the respondent and the outstanding council rates to the City of Onkaparinga; and (b) to pay one half of the net proceeds of sale after the payments referred to in sub-paragraph (a) to the applicant and one half to the respondent. 163 I will hear the parties as to the further orders necessary to give effect to these orders and I direct that the applicant provide draft minutes of order. 164 I will hear the parties as to costs. -- 36 of 36 --