The Judge's reasons
20 The primary judge approached the respondent's claim for the loss of the deceased's services to the farm on the basis that it was likely that the deceased would devote more time to the dairy farm in her retirement. His Honour found that her attachment to the dairy was such that her working hours would not have fallen below 27 hours per week throughout the remainder of the respondent's life. He calculated the value of the loss by reference to an hourly rate of $37 for the past and the future. The sum for the past amounted to $424,575. The allowance for the future, which was discounted by 15 per cent for vicissitudes, amounted to $471,278.
21 His Honour found that the domestic services provided by Ms Smith and Ms Wiley were far less than those that the deceased had provided to the respondent and Matthew. He allowed 21 hours per week for the loss of these services, after excluding the time spent by the deceased on services that were for her own benefit. His Honour allowed a further four hours per week for the loss of the deceased's gardening services. The value of the loss was calculated by reference to commercial rates. Neither the allowance for the gardening services nor the rates were challenged on the appeal.
22 The respondent was the sole beneficiary under the deceased's will. He was eight years older than the deceased and actuarially had no expectation of surviving her and benefiting under the will. The primary judge took into account the fact that the respondent had acquired the whole of the deceased's estate in two ways. He reduced the award by $40,000 to reflect the saving of interest (assumed to be at a rate of 10 percent per annum) on joint loans, which the respondent repaid using the proceeds of the sale of the Tathra units, and he rejected the respondent's claim to $13,338 for the loss of the benefit of the deceased's wages from the Bega Joinery. (Red 47.D)
23 The primary judge dealt with the balance of the appellant's claims that the award be off-set by bringing the accelerated benefits into account in this way:
"[112] An accelerated benefit, for the purposes of this case, is a benefit which a beneficiary has received because of the death of a person, and which the beneficiary would not otherwise have received. The defendant here says that, although the home is excluded from the principle that any accelerated benefit must be set off against the loss caused by the death, the farm property is not. I reject this submission. In Horton v Byrne (1956) 30 ALJR 583, 584, the High Court said, 'It must … be borne in mind that, had her husband lived, she would have continued to enjoy the use of the house, as well as of the furniture, with him, or of any residence by which it might be replaced, throughout her married life. So that her gain is not very real and certainly is not equal to anything like half the value of full ownership. In Nguyen's case, the High Court appears to have affirmed this principle. In Peipman v Turner [1961] NSWR 252, 257, the Full Court of the Supreme Court of New South Wales applied the same principle. Where the surviving spouse and children continue to enjoy the benefit of something they enjoyed jointly with the deceased up to the time of death, they do not gain a benefit because of the death. Cape Distribution Ltd v O'Loughlin [2001] EWCA Civ 178 is consistent with this.
[113] In this case the defendant argues that the land used for the dairy farm, which was on a separate title to the matrimonial home, should be regarded as a business asset, and that when Janet died, Peter gained a benefit (which he would not otherwise have enjoyed) by virtue of being the survivor. It is not suggested that Matthew has received any accelerated benefit. It is not clear from the evidence before me whether the land was held as tenants in common or as joint tenants. I do not consider that it makes a difference, because what Peter had after Janet's death, in terms of enjoyment or occupation, was exactly the same as what he enjoyed before her death. The business was certainly operated as a partnership, which works in much the same way as the joint tenancy. Each tenant, or partner, as the case may be, has an interest in the whole of the property. When the other tenant or partner dies, that interest becomes more valuable, but does not change in character. In that sense it cannot be an accelerated benefit. Before Janet died, and after it, Peter enjoyed the dairy farm property just as much as he enjoyed the home. It follows that the increase in the value of his share in the dairy farming land should be regarded in the same way as the increase in the value of his interest in the matrimonial home, and not as an accelerated benefit.
[114] The plaintiff concedes that the expense of maintaining Janet prior to her death which is no longer required, might be set off, but such expenses must be seen as coming out of Janet's salary, so that there is no net gain to Peter and Matthew for which the Defendant can fairly claim any set-off as a collateral benefit. Peter's wages were not increased by the sum equivalent to Janet's wages, but by a smaller amount. This may be accidental, but it recognises the fact that Janet's maintenance is no longer necessary. The question of expenses incurred on Janet herself essentially disappears because her salary more probably than not funded most or all of her living expenses.
[115] The sale of the Tathra units merely produced funds that were used for the farm. Matthew's interests have not changed, as he was merely a discretionary beneficiary of the trust, and had no vested interest. Nor did he gain as a result of his mother's death. Peter has gained a benefit, in that he no longer is obliged to pay interest on the mortgage debt to the bank on the farm, which was paid off with the proceeds of the sale. The evidence was that this debt was $206,000 when Janet died. The debt was a joint debt of Janet and Peter. If Janet had survived, presumably she would have paid half the interest. Assuming interest rates of 10 %, Peter has saved a sum of about $10 000 per year. I make some allowance for this benefit and will set-off a sum of $40 000 on this account.
[116] Otherwise I reject the defendant's arguments regarding set-off of accelerated benefits, as I find that, with the one exception I have noted, neither Peter nor Matthew has received any such benefit.