Cashen v Cashen [2001] NSWSC 469

New South Wales Supreme Court

CITATION : Cashen v Cashen [2001] NSWSC 469 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5041 of 1999 HEARING DATE(S) : 01/06/01 JUDGMENT DATE : 5 June 2001

PARTIES : Anthony John Cashen v Norman Henry Thomas Cashen and 2 Ors - Estate of Edward John Cashen JUDGMENT OF : Master Macready at 1

COUNSEL : Mr D. Campbell for plaintiff Mr J. Thomson for defendant SOLICITORS : Campbell Paton & Taylor for plaintiff McIntosh, McPhillamy & Co for defendant CATCHWORDS : Family Provision. Application by nephew who worked for many years on deceased's property. - Order made. No matter of principle. DECISION : Paragraph 38

1 MASTER: This is an application under the Family Provisions Act in respect of the estate of the late Edward John Cashen who died on 8 March 1999 aged 71 years. The deceased died intestate and his estate passed to his three brothers who are the defendants in the proceedings. The plaintiff is the deceased's nephew, he being the son of the first defendant. 2 The estate consists of a rural property at Blayney in country New South Wales together with cash of $86,600, plant and equipment probate value of $46,690, and stock of $30,000. There is in evidence a valuation of the land which is in two parcels, separated by the main highway. The total value is $425,000. There was an estimate for probate purposes of $290,000 but given the sworn valuation I will accept the value at $425,000. The costs of the defendant will be $30,000 and those of the plaintiff $31,500. Thus, there is cash left of about $25,000, stock, plant and the land. 3 I will briefly touch on some of the chronology in the matter. The first defendant, Norman Cashen, was born on 13 September 1926. Edward Cashen, his brother, was born on 25 July 1928, and Ernest Clive Cashen, the second defendant, was born on 19 October 1931. Lionel Clyde Cashen, the third defendant, was born on 18 March 1939. The plaintiff was born on 7 October 1950. 4 In the early 1950s the deceased apparently was given a licence to use the property consisting of approximately 45 acres known as "Carinya". The plaintiff at that stage was living with his family on another nearby property and he left school in 1966. Thereafter he is employed at the Blayney Abattoir and from time to time did some work on the deceased's property. Between 1970 and 1973 the plaintiff lived in Western Australia and worked in mining positions in that state. In 1973 the plaintiff came back to Blayney and worked at the abattoir and also did some unpaid work on the deceased's property helping him from time to time. From 1975 to 1985 the plaintiff once again lived and worked in Western Australia, mainly concerned with mining in which he obtained some skills. 5 In 1979 the deceased purchased 300 acres which joined the property known as "Carinya". This area was known as "Willow Glen". On 17 May 1983 the deceased inherited the original property of "Carinya", which he had been using, from his parents. 6 In 1985 the plaintiff came back to Blayney. In that year, he lived on the property "Carinya" in a caravan which was attached to the old homestead for the purposes of taking power. Over the years in 1986 and 1987 the plaintiff started to take over management of the property for the deceased. He carried out a number of improvements, which I will refer to, and worked on the property. This was only in part. Each year he has also worked in Mackay during the season in the sugar cane industry. 7 In 1988 the plaintiff went back to Queensland. Before he got a job the deceased rang him up and asked if he could come back and help him. Accordingly, the plaintiff came back with his caravan and since 1988 has resided permanently back on "Carinya". 8 With the consent of the deceased the plaintiff himself also had some stock which he used on the property as well as increasing the deceased's stock and generally managing it for him. The parties made their income from selling the stock. That supported both of them. Each received their income from the sale of their particular stock. In addition, there was also grown some lucerne on the flats beside the creek which was used for the stock. In 1994 the plaintiff purchased some equipment so that it could be used in the lucerne production on the property. The deceased purchased a tractor and said he proposed to give it to the plaintiff. Similarly, in 1997 the deceased purchased a hay baler and gave it to the plaintiff so that he could do some contract hay cutting. 9 In early 1999 there was for sale a small area of a church which is adjacent to the homestead and surrounded by the land in the homestead. That was purchased by the deceased for $6,000 and it was given to the plaintiff. The plaintiff paid stamp duty and legal costs. The idea was for the deceased and plaintiff to do it up and then move into it on a permanent basis. That did not happen except for the construction of a new tank stand and associated lines. 10 The deceased died on 8 March 1999 and letters of administration granted to the defendants. Since then the plaintiff has continued to operate and maintain the property being reimbursed by the Estate for general expenses but not his labour. 11 For the plaintiff to be able to succeed it is necessary that he show that he is an eligible person as part of the household of the deceased and either wholly or partly dependent on the deceased. This matter is not really in dispute. The fact of the matter is that from 1988 the deceased asked him to come and live with him in the house but the plaintiff preferred to live in his own caravan. That was attached to the house by a power line from the house. There was a household as the plaintiff would do more and more of the domestic work around the house until it reached the point where he was doing all the cooking and washing for both himself and the deceased, his uncle. He also provided companionship to the deceased. 12 In these circumstances I am satisfied that he is an eligible person. It is also necessary, under section 9(1) of the Family Provisions Act, that the Court should determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J, as he was then, described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between factors which warrant the making of the application on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that all are factors which warrant the making of the application within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s61B), whereas the classes affected by s9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the factors referred to in the subsection are factors which when added to the facts which render the applicant an eligible person give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the events that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but refuse to proceed with the determination of the application."