Kelly v Kelly

[2007] NSWSC 541

CITATION:	Kelly v Kelly [2007] NSWSC 541
HEARING DATE(S):	29,30 November 2006 1 December 2006 30 April 2007
JUDGMENT DATE :	31 May 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
CATCHWORDS:	Family Provision. - Application under Family Provision Act 1982 by a daughter who was left a small portion of deceased's grazing property. Balance left to son. Order for adjustment of parties' share of the property.
PARTIES:	Donna Mary Kelly v Clarke John Kelly
FILE NUMBER(S):	SC 1138 of 2005
COUNSEL:	Mr J Wilson SC for plaintiff Mr SG Cambpell Sc & Mr M Meek for defendant
SOLICITORS:	Holman Webb for plaintiff Lyons Barnett Kennedy for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Thursday 31 May 2007

1138 of 2005 Donna Mary Kelly v Clarke John Kelly

JUDGMENT

1 His Honour: This is an application under the Family Provision Act 1982 in respect of the estate of the late Mary Ethel Kelly who died on 14 July 2004. The deceased was survived by the plaintiff, her daughter, and her son, the defendant. The deceased had been married and with her husband she had carried on a grazing business on their property “Oakvale”at Upper Horton in country New South Wales. Her husband predeceased her on 28 September 1985 and the deceased continued with the business until her death.

The will of the deceased

2 The deceased made her last will on the 11 September 2003 and under that will she appointed the plaintiff and the defendant executors and trustees of her will. The plaintiff received a specific bequest of:

(a) 20 head of cattle and their unweaned calves.
(b) An area of approximately 100 acres on which the cottage in which the plaintiff and her partner, Casey Turner live is located, such area to be subdivided from Oakvale.
(c) The Yamaha Quad Runner portable compressor, welder and fire fighter pump.
(d) Such of the deceased's household goods as are chosen by the plaintiff.

3 The defendant received the balance of the property and the plant and livestock. The residue of the estate was divided between the plaintiff and the defendant equally.

Assets in the estate of the deceased

4 At the time of the hearing the estate comprised the following assets:

Oakvale $1,165,000.00
Livestock $162,585.00
Plant and Equipment $30,200.00
NAB term deposit $141,051.64
Trust Account proceeds $29,807.49
Loan owed by Clarke Kelly $20,700.00
AMP shares $18,700.00
Total $1,568,044.13

5 There were rates and taxation liabilities outstanding amounting to $8,991.27 leaving a net estate before costs of $1,559,052.86.

6 The parties have incurred substantial costs in the matter. The plaintiff's costs for a two-day hearing were estimated at $123,300 and the defendant’s at $109,925. This is a total of $233,225. The hearing occupied three days with another short period on a fourth day. The amount of these costs means that if the plaintiff is successful there will be no residue.

Family history

7 This is conveniently set out in written submissions of the parties which I will incorporate in this judgment together with some amendments.

8 The deceased married Patrick John Kelly and after their marriage they lived on the property Dalkeith owned by his father Terrence Kelly. Patrick John Kelly was a member of the Dalkeith Partnership comprising his father, his brother Max and himself.

9 In 1972 the deceased and her husband acquired the property "Oakvale". Oakvale has an area of approximately 2,319 acres (938.63 hectares). They worked the property in partnership (the Oakvale Partnership) and in conjunction with the Dalkeith Partnership.

10 The defendant who was born on 2 March 1967 went to boarding school at Toowoomba for his secondary education. He returned to the property in about 1984.

11 The plaintiff who was born on 5 August 1968 went to the local high school at Barraba. She left school in early 1985 to take up a hairdressing apprenticeship in Tamworth.

12 The defendant after leaving school lived on Oakvale with his parents and after his father's death with the deceased. In 1992 or thereabouts he had a falling out with his mother and was ordered off the property.

13 The plaintiff worked as an apprentice hairdresser in the Tamworth area and then later in Toowoomba. In 1986 she went to Melbourne to complete her hairdressing apprenticeship. She lived in Melbourne until February 1993 when she returned to the Tamworth area at the deceased's request. On returning to the Tamworth area she became reacquainted with Casey Turner.

14 The plaintiff and Casey Turner were living in separate residences at Bingara in late 1994. From that time Casey Turner went to Oakvale to assist the deceased with stock management and farm work when the deceased requested assistance.

15 In 1995 the plaintiff and Casey were considering moving away from Upper Horton to Queensland to purchase their own farm but the deceased offered to give the plaintiff 100 acres of Oakvale on which the plaintiff could build a house, have a small area on which to breed cattle and for Casey to breed horses.

16 The plaintiff and Casey moved onto Oakvale in March 1996. They lived in the shearing shed on the property for 6 months. The deceased gave the plaintiff six cows with which to start her herd. The plaintiff and Casey wished to construct a house on the area of land intended for the plaintiff by the deceased but they were not able to borrow sufficient monies. The deceased borrowed $40,000 from National Australia Bank and this was used to purchase a portable house and to provide services, water, sewerage and electricity to the portable house. The plaintiff and Casey made repayments to the bank in respect of monies borrowed by the deceased and had repaid the loan by 2003.

17 After moving onto the property Casey Turner provided assistance to the deceased in respect of cattle and farm work on Oakvale. This work was said to be performed without remuneration. There is a dispute as to the quantum of work done by Casey Turner on Oakvale and I will return to this matter later.

18 After moving onto Oakvale Casey earned an income as a farrier and in breaking in and educating young horses. The plaintiff obtained casual work as a hairdresser in 1996/97. In 1997 she obtained full time work in Tamworth.

19 The plaintiff's eldest child Ricky John Turner was born on 29 April 1999. The plaintiff took six months off work then returned to casual employment working two days per week.

20 In March 2000 Casey was shoeing a horse at a nearby property and a steel fragment entered his eye. He suffered a serious eye injury and underwent surgery. Subsequently the injured eye was removed. This injury impacted on his ability to do lifting work but notwithstanding this he continued to carry out work for the deceased when he returned to Oakvale.

21 In May 2000 the plaintiff's son Ricky who was then aged 12 months suffered serious burns to the face and upper body which required hospitalisation. He has recovered from those injuries and now leads a normal life except that he is left with scarring to his body.

22 In August 2003 the deceased invited the plaintiff and the defendant to a meeting where she proposed to discuss her testamentary intentions. It would seem that both the plaintiff and the defendant were aware of the deceased's intention to leave the plaintiff 100 acres of Oakvale. The meeting lasted some time but it was largely taken up with an argument between the plaintiff and the defendant as to the extent and value of the work done on the property by Casey Turner. From that time Casey Turner ceased performing any substantial work on Oakvale and the defendant came to the property to assist the deceased.

23 The plaintiff and Casey extended the cottage, constructed fences around and near the cottage, built stables and built three large sheds in the period 1996-2003. The plaintiff's second child, Abby, was born on 17 March 2004.

Eligibility

24 The plaintiff is an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

The plaintiff’s situation in life

25 The plaintiff is aged 38 years and her partner Casey Turner is aged 45 years. They have two dependant children Ricky born 29 April 1999 and Abbey born 17 March 2004.

26 The plaintiff has the following assets:

Mitsubishi Magna $2,500.00
NAB cheque account $ 471.24
Two quarter horse mares with foals (1/2 share) $7,100.00
One male colt (1/2 share) $1,800.00
Two quarter horse yearlings (1/2 share) $6,000.00
New England Credit Union Account $ 3.42
House contents $5,000.00
Total $23,124.66

27 The plaintiff has her interest in the estate and she also has access to funds available for her children, namely:

For Ricky - Trust Account $8,248.58
For Abby - Trust Account $ 31.00

28 The plaintiff has a Master Card debt of $3,984.42.

29 The plaintiff’s husband Casey has the following assets:

Westpac Savings Account $ 329.00
Term deposit with New England
Credit Union $2,294.73
Another term deposit with
New England Credit Union $ 603.54

1974 Holden Utility $ 200.00
Breeding mares $40,000.00
Horse trailers $ 1,500.00
Portable yards $10,000.00
Loading ramp $ 800.00
Tractor $ 2,000.00
Attachments $ 2,000.00
Saddles and equipment $10,000.00
1998 Ford Falcon utility $ 2,400.00
Quarter horse mare $ 2,350.00
Quarter horse mare with foal $5,000.00
One quarter horse colt $1,800.00
Five male geldings $10,000.00
One stallion $6,000.00
2 quarter horse yearlings $6,000.00
1 male colt yearling $3,000.00
2 fillies $4,000.00
Viscount caravan $ 600.00
Household and miscellaneous items $5,000.00
Total $115,877.27

30 The plaintiff's taxable income for year ended 30 June 2006 was $9,397. Casey Turner's taxable income for year ended 30 June 2006 was $9,319. These figures on their own are misleading as it is apparent that Casey has not sold any horses over that period. In 2003 after the argument with the deceased the plaintiff and Casey sold their 47 head of stock and received $17,000. This was not included in their taxable income in the relevant year.

31 There is evidence from Casey that his living expenses including school fees and business expenses for his horse breeding business were paid from the proceeds of his damages claim which amounted to $29,700. He also purchased three quarter horse mares and foals and some small items of equipment from these funds. It is also obvious that the proceeds of the sale of the stock shortly before the death of the deceased have also been substantially expanded. Unfortunately there is no evidence from the plaintiff and Casey as to any true projections of the income which they will receive and expenses that they will incur over the coming years. This, as I mention later, makes it very difficult to assess their claims although I do accept that they have had to live in part on capital over recent years. At the same time they have accumulated the horses to start their breeding programme.

32 The plaintiff always had a good relationship with the deceased. In 1993 after the defendant left the property the deceased asked the plaintiff to return from Melbourne which she did so that she could be closer to the deceased. Plainly when she and Casey moved on to the property in 1996 there was further extensive contact. Notwithstanding the argument in 2003 the plaintiff and the deceased maintained a close relationship with the plaintiff assisting the deceased in her illness in her last year.

The situation in life of the defendant

33 The defendant is 40 years old and is married. He operates a wool buying business known as CJ Kelly Wool. The business realised a loss of approximately $1,200 in the last financial year. He has continued to undertake seasonal casual employment including farming and wool classing. His wife Irene is currently employed as a sales agent for CB Hart Pty Ltd, the franchisee in respect of the Landmark offices at Barraba. Her weekly income amounts to $675.96. Apart from the weekly income from Landmark, the defendant and Irene receive rental income of $250 per week in respect of the Tamworth property. That income is used entirely in payment of the mortgage on the property.

34 The defendant and Irene own the following assets:

Property at 34 William Street, Tamworth $225,000.00
Subaru Outback $ 16,000.00
Car trailer $ 1,000.00
Bank accounts $ 11,273.00
15 Sheep $ 375.00
741 IAG Share $ 4,179.24
Furniture $ 2,000.00
AMP Life policy surrender value $ 1,000.00
Total $ 260,827.24

35 They have the following liabilities:

Loan $ 20,700.00
ANZ Home loan $111,986.74
Credit Cards $ 4,253.70
Landmark $ 350.00
Total $137,290.44

36 The defendant has superannuation with AMP Superannuation Fund which has a current balance of $18,680.74. Irene has superannuation with Guild Retirement Superannuation Fund of $21,500.

37 The defendant’s relationship with the deceased was quite good for most of her life. The defendant left school in 1984 and returned to work on the farm. After the collapse of the wool market in the late 1980s he received little for the work which he did at Oakvale and started to look for other employment and qualifications. He started to carry out some work elsewhere using qualifications that he obtained. In 1993 there was an argument as a result of which the defendant left the farm. In due course he commenced working with various wool companies. The argument with his mother did not last long and he really went his own way with other endeavours. At one stage he was offered a position with Elders at Winton but declined when his mother told him that Oakvale would still be available to him after she died. The relationship continued to be amicable up until the death of the deceased.

38 There is some evidence given by the sister of the deceased concerning discussions which she had with the deceased after the argument in 2003. In those discussions the deceased explained the reasons for making provision in the way in which she did in her will. In those discussions the deceased outlined the actual provisions which she had made in her will and referred to the fact that Donna thought she had been treated unfairly and wanted half of the estate. The deceased said she was opposed to this because to split the property in half would make it unviable. She was of the view that for the property to be viable it had to go to the defendant in its entirety excluding the hundred acres she had set aside. She also expressed the view that the hundred acres was a fair start in anyone's language and she recalled the fact that when she got married all she had received were twenty heifers.

39 The deceased also referred to the fact that Donna thought that Casey's work over the years had not been appreciated. In the deceased’s view that had been adequately compensated by Casey keeping his own cattle and horses on Oakvale without expenses. She also referred to her disagreement with Clarke and ordering him off the property. In retrospect she thought that it was probably the best decision because he was able to earn more and improve his prospects.

40 Why the deceased preferred her son over her daughter in the way set out in the will is not clear other than that she may have had a traditional idea about how a country property should be continued by the next-generation of males. In Johnston v McCallum (2005) NSWSC 17 I had the following to say on such views:

“61 There are some fundamental problems about the deceased’s approach to provision for his children as evidenced by his will. Clearly, the evidence discloses that he had a strong desire for his sons to have his farming property and it was for this reason that his sons received the majority of the assets in the estate. The deceased has taken the view that the same level of provision should not be made for his daughters. Although this view of the moral obligation which a farmer has towards his children has been common in the past, it is not one which should have any influence on a Court when exercising its jurisdiction under the Family Provision Act . The Act requires the Court to consider the individual circumstances of a child and what is the proper provision for that child without differentiating between children because of their sex.”

41 In the present case the parties did not disagree with such an approach.

Claims of the parties

42 The plaintiff sought an order that she receive one half of the property including the area on which the house was erected together with one half of the stock plant and equipment. The defendant sought a dismissal of the summons but was not seeking costs from his sister. If the plaintiff’s summons was dismissed he was prepared to consent to an order that the plaintiff's costs be paid out of the estate of the deceased.

43 In considering the claim of the plaintiff it is necessary to see what benefits she and her brother received from the deceased and any contributions that they may have made to the estate assets.

44 There is no doubt that when the plaintiff and Casey moved onto the property that Casey carried out work for the deceased. Although the work was not full-time the deceased required him to carry out work from time to time. The deceased occasionally used contract labour to work on the property. There is no doubt that there was a substantial input by Casey and I am prepared to accept that most if not all the work he did was without remuneration. The amount of the work is dealt with by a number of witnesses. For many years the deceased also kept a diary in which she recorded events on her property. The diary shows that Casey carried out work for the defendant on a regular basis.

45 There is no doubt that the deceased provided the plaintiff with a number of benefits in connection with the move to the property in 1996. An important one was the right to use the whole property to run the plaintiff and Casey's cattle and horses. Only a small part of the hundred acres area was fenced. In addition the plaintiff received the benefit of the occupation of the property and the ability to build a house and improvements on it relying upon the promise by the deceased to leave it to her in the deceased’s will. The deceased provided another benefit when she borrowed $40,000 to help fund the house. Although this was at no cost to her because Casey and the plaintiff repaid the loan there was some small benefit because they could not borrow the funds themselves.

46 It is not possible to quantify the extent of the work that was carried out by Casey on the property. It is plain that the deceased regarded that work as sufficiently compensated by the right to run cattle and horses on the property. After the argument in 2003 the cattle and horses were sold and Casey, no doubt because the plaintiff thought his contribution had not been appreciated, ceased work on the property. It seems to me that one can fairly regard the arrangement by which the parties conducted their business arrangements as providing Casey with proper compensation by way of the benefits which they received.

47 The plaintiff received some benefit as she was provided with a place to erect a home, admittedly small, without having to outlay the funds to purchase the land.

48 The plaintiff and Casey made some improvements to the property after they moved there in 1996. Apart from the construction of the home they built stables, three large sheds and a number of fences around these improvements and surrounding paddocks.

49 In his early years the defendant worked for little remuneration on the family property. In the period since the deceased’s death he has managed the property without remuneration. He would have received in excess of $70,000 if he had been paid as a station hand during this period.

50 The plaintiff and the defendant each received a gift of $20,000 from their mother.

Consideration of the plaintiff’s claim

51 The difficulty with the provisions of the will of the deceased is her proposal to subdivide land for the plaintiff. This would require appropriate town planning consent. The land is zoned general rural under the Barraba Local Environment Plan 1990. Under clause 13 of the environmental plan the Council cannot approve a subdivision unless each allotment has an area of 200 hectares (494.21) and, if the allotment has a frontage to an arterial road, a frontage to that road of 400 metres or more. In addition the Council has to be of the opinion that each allotment created for that purpose is capable of sustaining a form of agriculture common in the locality.

52 There was no evidence before me that any of the proposed allotments in the present matter have a frontage to an arterial road (a defined term in the local plan) but, having regard to the locality as depicted on the aerial photographs, it is unlikely. An expert town planner gave the following evidence of obtaining approval to a lesser subdivision.

“Thank you for the opportunity to provide planning advice in respect of the above matter. This advice is preliminary based on a brief review of the documents provided and the Barraba Local Environmental Plan 1990 (BLEP).

As you are already aware, the minimum lot size for rural subdivision under the BLEP is 200 hectares.
A conforming subdivision is most likely to be approved by Gwydir Shire Council. This would be my recommended option given the need for certainty by the Court.

It is possible that Council may consider a non-conforming subdivision using a State Environmental Planning Policy No1 (SEPP 1) variation to the 200 hectare minimum lot size development standard. SEPP 1 makes no reference to the extent of the variation permissible and substantial variations may be allowed in appropriate cases. Council must determine that granting consent is consistent with the overall aim of the BLEP. In this case, Council may consider a variation favourably as the variation:
(a) would not result in additional dwellings on the property
(b) would not impact on the agricultural viability of either of the resultant properties (ie) the residual is of sufficient size to be agriculturally viable and the severed parcel would continue to be managed as a small working property with off farm inputs, and
(c) is generally consistent with the aims of the zone.
Development Application using a SEPP 1 variation should be supported by evidence from an agronomist or the Department of Primary Industries confirming that the subdivision would not impact on the agricultural viability of the land.

Council may also consider an application for subdivision of Rural 1(a) land of not less than 2 hectares under Clause 16 of the BLEP where certain criteria are met. This approval pathway would not require a SEPP 1 variation, however, the applicant would need to demonstrate compliance with a range of criteria including:

(a) the land is within reasonable proximity of Barraba
(b) the land has reasonable all-weather access to the township of Barraba
(c) the land is not subject to environmental hazards
(d) there is adequate water supply and effluent can be disposed of readily
(e) the land is an existing holding (ie) held in the same holding pattern as in 1990 when the BLEP was gazetted.

On the surface, these criteria do not appear to be onerous, however, the likelihood of approval is difficult to determine without going through the DA process.

Both of the options mentioned above are uncertain and would require further investigation and consultation with Council's Director of Planning before I would recommend pursuing either of these options.”

53 When the matter was before me late last year there was some evidence from the plaintiff proposing subdivisions that would give her a half share of the property. It became apparent that those subdivisions did not take into account the type of country in the subdivision and therefore there was no point in considering the plaintiff’s claim. At my suggestion the parties engaged the two experts called by the parties to provide a further joint report to the Court which would analyse the land and propose a number of different subdivisions calculating the value of the land based upon evidence in the case. I will return to the detail of those subdivisions shortly.

54 It is necessary when considering the matter to see how the plaintiff says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. Her case was that she and Casey needed a larger area of land in order to generate income and funds to add another bedroom to their cottage while their two children are growing up. The plaintiff also suggested that she would like to provide private school education to the children although there was no evidence of the cost of such education.

55 The subdivision proposed by the deceased in her will is not approved. She provided that if the Council did not consent to the subdivision that the defendant should pay the plaintiff an amount equivalent to the value of the cottage and land at the date of her death by three equal interest-free annual instalments. She also provided for a mechanism to determine that value. When considering the plaintiff’s claim I can assume that she will receive under the will of the deceased land worth $90,000, the home, twenty head of cattle worth $19,000 together with some chattels and personal effects. The sum of $90,000 for the home is probably a minimum amount as it does not take into account improvements.

56 Based upon the use of the property for cattle carrying the evidence from the joint report indicates that a property of this size will produce an annual gross margin of $2,557.

57 After the experts had inspected the property and formed their own view of the nature of the country and its carrying capacity they proposed a number of different subdivisions. There were two versions of the hundred acres to be transferred with additional versions adding small additional amounts of land to accommodate some of the evidence in the case. That evidence was that to operate a breeding herd of 20 horses (and no cattle) you would need either 56 or 72 hectares depending on the country selected. In addition there was a subdivision of a block of slightly more than 200 hectares to meet the requirement in the local planning scheme. The experts also prepared subdivisions of the property into one third and two thirds and finally two separate halves.

58 In their tables the experts valued each portion in each subdivision indicating carrying capacity and the annual gross margin based upon the carrying capacity. The case put forward by the plaintiff for a larger area of land was one in which Casey Turner suggested that they needed at least 500 acres for horse breeding activities.

59 Although the proposal has been carefully considered the financial implications have not been investigated in any depth. Casey conceded that a lesser area could achieve the necessary paddock rotation. However, he seems to have wanted more land to avoid having to hand feed stock. This would no doubt affect his profit margin. He was also planning to use cattle to train the horses and no doubt he would wish to run some cattle for this purpose and to also provide an income. Substantially increased prices can be obtained if horses can be trained with cattle and they can be sold as trained stock horses. A possible doubling of the income can be obtained in this regard.

60 The first matter to be determined is whether in fact the plaintiff has been left without adequate and proper provision for her maintenance, education and advancement in life. The proposal for additions to the house and the schooling of the children have not been costed. Although the first proposal is probably urgent the second is not urgent at the moment. She has a need for further income which could be generated from the proposed horse breeding programme.

61 I have referred to the fact that the land the plaintiff receives under the will is only able to produce a small increase in income if it is used for cattle breeding. Although I accept that an increased income level is available from horses I do not think that even by doubling such income it would assist in maintaining the family. My view is that the plaintiff has been left without adequate and proper provision for her maintenance and advancement in life.

62 The unfortunate situation in this estate is that the costs have now overtaken the cash assets. Probably there will have to be some recourse to remaining assets to pay liabilities and costs. I think it is appropriate that such debts be met from sale of livestock, plant and equipment.

63 As a whole the property is not sufficiently viable to support a station hand’s wage and it would only support a family who was prepared to accept an income of less than a station hand’s wage. If the property is divided into two parts neither will be sufficient in size to support a family. If a subdivision takes place then both parties will have to earn other income to supplement the income from running the property. Nowadays this is not uncommon. The defendant has a number of qualifications which would help him to obtain income other than from the farm as does his wife Irene. The plaintiff’s opportunities for extra income are limited to a family allowance at the moment although her husband Casey has the ability to earn such income and is presently earning $200 per week.

64 The defendant undertakes seasonal casual employment and his wife receives a modest wage from her employment. The provision of a substantial part of the property would enable them to generate a reasonable income but not sufficient to maintain them without income from the work off the property. I have already adverted to the difficulty in assessing the plaintiff’s present income. It is apparent when comparing the situation of the plaintiff and Casey with the defendant and his wife that the plaintiff and Casey have a substantial number of horses and equipment available to them for the purpose of carrying on a horse breeding business. The defendant, on the other hand, has no such items and, if he were to receive income from the farm, he would need stock, plant and equipment.

65 The Court should take a conservative approach to the plaintiff's claim having regard to the difficulty in assessing her needs. The subdivisions of 40 hectares up to 72 hectares will produce a gross income for the plaintiff based on cattle of $2,557 to $4,542 and for the defendant of $47,933 to $45,948. The 207 hectare subdivision will produce for the plaintiff $13,119 and for the defendant $37,371.

66 If the plaintiff receives 207 hectares it is plain that she and Casey will be able to receive more than this income as they will be able to breed horses from their existing horses. With that amount of country this could probably achieve a gross return approaching a station hand’s wage. Cattle could supplement that income. To enable them to provide for their young family they would probably need to add some off farm income.

67 The defendant would receive a gross income of $37,371 and he would have the plant and equipment and some stock for the remaining part of the property. He would also need off farm income.

68 In these circumstances I think the appropriate order is that the plaintiff should receive the following:

1. If it is able to be subdivided the 207 hectare subdivision referred to in the joint experts’ report (shown visually on page 18 of that report) exhibit “F” in place of the bequest in clause 4 of the deceased’s will.

2. The plaintiff should retain the bequests contained in clause 3, 6 and the first numbered 7 in the will.

69 This will leave the defendant with the balance of the property and the balance of the stock, plant and equipment.

70 In the event that a subdivision cannot be obtained, in spite of the parties’ best endeavours, the property will have to be sold and the proceeds divided in similar proportions between the parties.

71 So far as costs are concerned the plaintiff’s costs on an ordinary basis and the defendant’s costs on an indemnity basis should be paid or retained out of the estate of the deceased. Any outstanding costs after exhaustion of residue should be charged on the stock and should be shared proportionately between the plaintiff and the defendant in respect of the number of stock each is to take from the estate.

72 I direct the parties to bring in short minutes to give effect to these reasons.

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