The position of Stuart McCallum
60 Macready AsJ made the following findings in relation to Stuart.
"Stuart is 55 years of age. He and Sandra own two properties, they being:
Willum Park and Fairfield (agreed value) $847,500
Plant and equipment (wdv) $457,724
In addition to the above, Stuart share farms "Oakleigh East", which he has done since July 1997. The estate receives approximately one half of the nett profit from that arrangement, Stuart receiving the remaining 50%.
From May 1996 the deceased, his grandson John, together with Stuart and his wife operated what became known as McCallum Harvesting. At the commencement of the business there were a number of items purchased. These included:
A 2188 Header $187,000
A shoreborn combine $48,000
A ten ten header $31,976
A header trailer $4,500
The last item was purchased outright and the others were purchased on finance. Apparently payments were made to the leasing company until August 1998, when the partnership was dissolved. This was with the consent of the deceased because apparently his grandson, John, had been away and was not available to help Stuart who was doing all the work in the partnership. Clearly the partnership did not involve the deceased doing anything. The partnership paid for the repayments on the equipment, except for the last couple of instalments which were paid for by Stuart after the dissolution of the partnership. It is clear that Stuart retained the benefit of the equipment after the dissolution without accounting either to the deceased or to the deceased's grandson, John.
It was suggested that there was income due to the estate which had not been accounted for in the respect of McCallum Harvesting. That was for the year ended 30 June 1998, when there was a nett profit of $62,521. However, that does not take into account losses of $35,972 for 30 June 1997 and $15,618 for 30 June 1996. In these circumstances there would seem that up to the date of dissolution there were only minimal profits due to the deceased. However Stuart has had the benefit of the machinery, including its further depreciation after 1998. In the year ended 30 June 2004, Stuart's partnership with his wife had an operating profit of $54,469. It is plain that his property will not support him so he, like his brother, David, share farms and harvest crops to get sufficient income."
61 The appellant rightly complains that Macready AsJ did not bring the liabilities of Stuart into account. They amount to $752,249 making his nett assets $547,975.
62 Macready AsJ found that during the financial year ending 30 June 2004 Stuart and his wife Sandra made a nett profit from farming of $54,469. In addition they received from the sale of plant and equipment a profit of $214,000. Like David, Stuart's depreciation schedule includes the written down value of the plant and equipment at figures which are likely to be below their true value. His nett assets are accordingly likely to be significantly greater than set out above.
63 Stuart also received benefits from the deceased in the form of plant and equipment including profit from the share farming or partnership agreements entered into with the deceased over the years since 1966.
64 Apart from the period 1963 to 1966 when Stuart was employed on Oakleigh East he has not otherwise been employed by the deceased, Constructions or the dealership since leaving school in 1963.
65 Macready AsJ also considered the relationship between Stuart and the deceased and made the following findings:
"Clearly the deceased and the defendant, Stuart, had a long relationship and they were involved in many ventures together. There was no criticism of that relationship.