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[1929] VLR(62 results)

Cases reported in this volume of the Victorian Reports

IN RE REX MOTORS PROPRIETARY LIMITEDVLR 1

LOWE, J.·8 Oct 1928·Supreme Court of Victoria

CompanyVoluntary Liquidation — Execution by Judgment Creditor — Power of Court to Stay — Companies Act 1915 (No. 2631), secs. 142, 144, 194.

IN RE MELBOURNE PARKING STATION LTD.VLR 5

MANN, J.·26 Oct 1928·Supreme Court of Victoria

CostsTaxation — Counsel's fees — Quantum — Discretion of Taxing Master — Review by Court — Substantial Attendance — Legal Profession Practice Act 1915 (No. 2681), sec. 12 — Rules of the Supreme Court 1916, Order LXV., r. 27 (38) (41).

MORAN v. LIPSCOMBEVLR 10

MacFarlan, J.·16 Nov 1928·Supreme Court of Victoria

BailmentRepairs to chattel — Motor car — Bailee's responsibility, notice limiting — "Cars garaged and driven at owner's risk — Every care but no responsibility" — Car left for repairs — Damage through negligence of bailee while driving car to test repairs — Application and effect of notice.

IN RE HANCOCK’S GOLDEN CRUST PTY. LTD.’S TRADE MARKVLR 17

LOWE, J.·29 Oct 1928·Supreme Court of Victoria

Trade MarkRegistration — Motion to expunge — "Birdseye Macaroni" — Words descriptive of goods — Proceedings in firm name — Power to take — Trade Marks Act 1905-1922, secs. 16, 71.

REID v. REIDVLR 22

LOWE, J.·18 Dec 1928·Supreme Court of Victoria

Service and Execution of Process Act 1901-1924, sec. 22ACertificate of Tasmanian judgment registered in Victoria — Costs of registration — Assessment by Court, application for — Material in support.

DOWNES v. KORNIE FOOD CO. PTY. LTD.VLR 23

IRVINE, C.J.·12 Dec 1928·Supreme Court of Victoria

Health Act 1919 (No. 3041) sec. 232Food, Sale of, non-compliance with standard — Unopened package — Liability of manufacturer and packer on sale by another.

ADAMSON v. MELBOURNE AND METROPOLITAN BOARD OF WORKSVLR 27

[Present, LORD HAILSHAM, L.C., VISCOUNT DUNEDIN, VISCOUNT SUMNER, LORD ATKIN AND CHIEF JUSTICE ANGLIN.]·15 Oct 1928·Judicial Committee of the Privy Council

CharitiesWater Supply — Supply for public purposes without charge — "Charitable institution" — Lost Dogs' Home — Melbourne and Metropolitan Board of Works Act 1915 (No. 2696), sec. 94.

WEIDEMANN v. DAWSONVLR 35

Mann, J., Macfarlan, J.·15 Nov 1928·Supreme Court of Victoria

ContractBill of Sale — Intended purchase of chattel on terms — Sale "financed" by third person paying price to vendor — Hire of chattel by third person to intending purchaser — Substance of transaction — Whether purchase or loan by third person — Whether hire contract a bill of sale.

Postponement of Payments Act 1927 (No. 3571), sec. 2"Obligor" — "Purchaser under a hire-purchase agreement" — No obligation to purchase.

R. v. McIVERVLR 50

IRVINE, C.J.·20 Dec 1928·Supreme Court of Victoria

Criminal lawBail — Non-capital charge — Principles and conditions governing granting of bail.

IN RE BELLVLR 53

LOWE, J.·7 Feb 1929·Supreme Court of Victoria

ProbateExemplification of foreign probate — Sealing in Victoria — "Executor . . . therein named" — Order discharging executors to whom probate granted and substituting new executor. — Application in Victoria by substituted executor — Administration and Probate Act 1915 (No. 2611), sec. 51.

DICKENS v. MULHOLLANDVLR 55

Irvine, C.J., Mann, J.·16 Nov 1928·Supreme Court of Victoria

MotorsMotor omnibus — "Plying for hire" — Owner of unlicensed motor omnibus under contract with club plying over defined route for fixed weekly sum — Only club members to be carried — Fares to be collected by driver and handed to club — Member carried and fare collected — Whether a plying for hire — Motor Omnibus Act 1924 (No. 3378), s. 13 (1).

BENNETT v. WARNERVLR 65

LOWE, J.·26 Oct 1928·Supreme Court of Victoria

Local GovernmentPerson found committing breach of by-law — Refusal to give name and place of abode — Local Government Act 1915 (No. 2686), secs. 4, 717 — Whether sec. 717 applies to City of Melbourne.

LEACH v. WORLANDVLR 69

LOWE, J.·27 Feb 1929·Supreme Court of Victoria

Motor Car Act 1915 (No. 2702), sec. 13Motor car not carrying warning device — Driver, whether guilty of offence.

DICKENS v. MULHOLLANDVLR 73

[Coram: KNOX, C.J., ISAACS, RICH AND STARKE, JJ.]·22 Feb 1929·In the High Court of Australia

MotorsMotor omnibus — "Plying for hire" — Owner of unlicensed motor omnibus under contract with club plying over defined route for fixed weekly sum — Only club members to be carried — Fares to be collected by driver and handed to club — Member carried and fare collected — Whether a plying for hire — Motor Omnibus Act 1924 (No. 3378), sec. 13 (1).

CHARLES STEELE & CO. PTY. LTD. v. MIDDOWS BROS. & LINTON LTD.VLR 74

IRVINE, C.J.·19 Dec 1928·Supreme Court of Victoria

PracticePleading — Defence — Evasive denial — Bare denial of single allegation stated modo et form — Rules of the Supreme Court, 1916, Order XIX., rr. 13, 17, 19.

BLYTH v. HUDSONVLR 82

[Coram KNOX, C.J., ISAACS, RICH, STARKE AND DIXON, JJ.]·21 Feb 1929·In the High Court of Australia

MotorsMotor omnibus — Licensing of — Passengers carried for lump sum under agreement — "Separate and distinct fares for each passenger" — Offence — Motor Omnibus (Urban and Country) Act 1927 (No. 3570), secs. 3, 40.

LOMAX v. LOVEVLR 84

LOWE, J., Irvine, C.J., Macfarlan, J.·15 Mar 1929·Supreme Court of Victoria

LicensingLicensed premises — Sanitary precautions — Order of licensing inspector to instal septic tank system — Other system already in use — Validity of order — Licensing Act 1915 (No. 2683), secs. 138, 139, 203; Licensing Act 1922 (No. 3259), sec. 20.

Landlord and tenantLease — Licensed premises — Covenant by lessee to pay, &c., all rates, &c., impositions and outgoings — Installation of new sanitary system ordered by licensing inspector — Cost of, whether lessee liable to pay under covenant.

IN RE MITCHELLVLR 95

MANN, J.·19 Mar 1929·Supreme Court of Victoria

WillInterpretation — "Children" — Illegitimate child — Gift to "my niece J.M. daughter of my sister M." — Residue to be divided amongst "the children of my brothers and sisters" — J.M. illegitimate — Whether entitled to share in residue.

FRANCIS v. CITY OF ESSENDONVLR 98

LOWE, J.·27 Feb 1929·Supreme Court of Victoria

Local GovernmentClaim against municipality for compensation — Claim heard by police magistrate — Power of police magistrate to state a case for opinion of Supreme Court — Arbitration Act 1915 (No. 2614), secs. 8, 23 — Local Government Act 1915 (No. 2686), Part XXXVII.

ELSBURY v. DENTAL BOARD OF VICTORIAVLR 103

LOWE, J.·21 Feb 1929·Supreme Court of Victoria

DentistEmployment of assistant — Permit stating that assistant has previously practised under supervision of a dentist — Whether "dentist" includes a person recorded by the Dental Board — Medical Act 1915 (No. 2695), sec. 66 (3) (a) — Medical (Dentists) Act 1927 (No. 3569), sec. 12.

MIGHALL v. MIGHALLVLR 105

MANN, J.·19 Mar 1929·Supreme Court of Victoria

DivorceWife's costs — Investigation by proctor — "Sufficient separate estate" — Wife's assets necessary to her maintenance and not of kind readily encumberable — Alimony pendente lite — Wife supporting herself prior to petition — Marriage Act 1915 (No. 2691), secs. 142, 159.

AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LTD. v. 3DB BROADCASTING CO. PTY. LTD.VLR 107

LOWE, J.·20 Mar 1929·Supreme Court of Victoria

CopyrightMusical work — Reproduction in public by means of mechanical contrivance — Infringement of copyright — Copyright Act 1912 (No. 20 of 1912), Schedule (Imperial Copyright Act 1911): secs. 1, 19.

KEANE v. AUSTRALIAN STEAMSHIPS PTY. LTD.VLR 116

[Coram KNOX, C.J., ISAACS, GAVAN DUFFY, RICH AND STARKE, JJ.]·11 Mar 1929·In the High Court of Australia

ShippingBill of lading — Condition for cesser of shipowner's liability as soon as goods free from ship's tackles — Condition for storage of goods at owner's sole risk and expense on owner failing to take delivery — Following usual method of delivery, goods placed by ship-owner in store — Loss of goods from store — Liability for loss.

WRIGHT v. CEDZICHVLR 117

Mann, J.·26 Mar 1929·Supreme Court of Victoria

TortHusband and wife — "Consortium" — Respective rights of husband and wife — Action by wife against third person for damages for loss of society, protection and partial support of husband.

APTED v. C. M. BROOKE & SONSVLR 129

MANN, J.·20 Mar 1929·Supreme Court of Victoria

HealthFood, sale of — Unopened package — Non-compliance with regulations — Liability of manufacturer on sale by another — Prosecution directed by council of municipality other than that in which offence committed — Proceedings against firm in firm-name — Health Act 1919 (No. 3041), secs. 232, 354.

HUDD v. WILSONVLR 132

MANN, J.·20 Mar 1929·Supreme Court of Victoria

MotorsMotor car — Unlicensed driver — "Bon fide learning to drive," meaning of — Driver under age of eighteen years — Whether a "person" within meaning of sec. 7 — Motor Car Act 1915 (No. 2702), secs. 6, 7.

IN RE CROTHERSVLR 135

IRVINE, C.J.·16 Apr 1929·Supreme Court of Victoria

InsuranceLife insurance policy — Assignment — Validity — Assignment not in statutory form and not registered — Equitable assignment — Companies Act 1915 (No. 2631), Part III., secs. 476, 478.

IN RE W. & G. DEAN PROPRIETARY LIMITEDVLR 140

IRVINE, C.J.·25 Mar 1929·Supreme Court of Victoria

CompanyShares — Insolvency of member — Claim by assignee to be registered as a member — No relevant transmission clause in articles — Table A excluded — Discretionary power of directors to refuse registration of transfers — Insolvency Act 1915 (No. 2671), secs. 141, 154.

FINDLAY v. GOODVLR 145

IRVINE, C.J.·27 Mar 1929·Supreme Court of Victoria

Factories and shopsEmployment — Shortage of wages — Bankruptcy of employer — Shortage a debt provable in bankruptcy — Effect of sequestration on power of Court of Petty Sessions to make order for payment — Factories and Shops Act 1915 (No. 2650), secs. 199, 225, 232 — Factories and Shops Act 1927 (No. 3573), sec. 32 — Bankruptcy Act 1924-1928, sec. 60 (2).

LAMBELL v. MOOREVLR 149

IRVINE, C.J.·3 May 1929·Supreme Court of Victoria

Criminal lawLarceny by a trick — Goods on sale or return — Power given to pass property in goods — Pledge — Passing of property.

IN RE BEASLEYVLR 163

IRVINE, C.J.·3 May 1929·Supreme Court of Victoria

Real PropertyEquitable estate — Assignment — Gift — Land under Transfer of Land Act — Instrument of transfer to assignor lodged for registration before, but not registered until after, date of assignment — Transfer of Land Act 1915 (No. 2740), secs. 51, 53, 59, 61, 121 — Transfer of Land Act 1916 (No. 2849), sec. 3.

IN RE MEABY’S GARAGES PTY. LTD.VLR 171

IRVINE, C.J.·17 May 1929·Supreme Court of Victoria

CompanyVoluntary winding-up — Application to Court for appointment of liquidator — Time within which to be made — Companies Act 1915 (No. 2631), secs. 186 (ix.), 189 (2) — Rules of the Supreme Court 1916, Order LIV., r. 1; Chap. VII., r. 6 (2).

WOOLF v. VARLEYVLR 172

Macfarlan, J. McArthur, J., Wesley, A.J.·5 Dec 1928·Supreme Court of Victoria

County CourtJudgment — Entry of judgment in Supreme Court — Merger of County Court judgment — Execution — When statute barred — County Court Act 1915 (No. 2636), sec. 104 — Real Property Act 1915 (No. 2719), sec. 47.

THE KING v. THE REGISTRAR OF TITLESVLR 178

IRVINE, C.J.·15 May 1929·Supreme Court of Victoria

Transfer of landSubdivision — Plan — Registrar's duty to receive and consider plan of subdivision submitted — Transfer of Land Act 1915 (No. 2740), secs. 201, 211, 212.

SCALES v. CHARLESTONVLR 184

MacFARLAN, J.·27 May 1929·Supreme Court of Victoria

LicensingSale of liquor without licence — More liquor on premises than, reasonably required for use of residents — Prim facie evidence of unlawful sale — No positive finding of sale by defendant — Case stated — Licensing Act 1915 (No. 2683), s. 237.

McGREGOR v. THE HERALD AND WEEKLY TIMES LTD.VLR 189

Mann, J., McArthur, J., Lowe, J.·28 June 1928·Supreme Court of Victoria

DefamationLibel — Innuendo — Whether words capable of meaning assigned — No direction to jury that words capable of less injurious meaning — Plea of justification — Persistence in at trial — Whether may be considered in assessing damages.

THE HERALD AND WEEKLY TIMES LTD. v. McGREGORVLR 215

[Coram KNOX, C.J., ISAACS, HIGGINS, GAVAN DUFFY AND STARKE, JJ.]·8 Nov 1928·In the High Court of Australia

DefamationLibel — Innuendo — Whether words capable of meaning assigned — Plea of justification persisted in but not established — Assessment of damages.

IN RE CHIRNSIDEVLR 217

Irvine, C.J., Cussen, J., McArthur, J.·15 May 1929·Supreme Court of Victoria

BankruptcySale of assets by trustee — Whether sale impeachable by person aggrieved — Bankruptcy Act 1914 (4 & 5 Geo. V., cap. 59), sec. 80. Cf. Bankruptcy Act 1924 (No. 37 of 1924), sec. 148.

TrustsExecution — Cestui que trust presently entitled to trust property — Trustees having notice of charges on his interest.

IN RE BERRYVLR 224

McARTHUR, J.·19 June 1929·Supreme Court of Victoria

SolicitorUnqualified person acting as solicitor — Letter to debtor demanding payment and threatening legal action in default — Contempt of Court — Imperial Acts Application Act 1922 (No. 3270), sec. 87.

T. W. CRONIN SHOE PTY. LTD. v. CRONINVLR 227

MacFARLAN, J.·24 June 1929·Supreme Court of Victoria

ContractRestraint of trade — Sale of business — Covenant by vendor not to carry on or be engaged, concerned or interested in, or permit his name to be used in connection with, a similar business within one hundred miles — Validity of covenant.

CUNNINGHAM v. CUNNINGHAMVLR 232

IRVINE, C.J.·28 June 1929·Supreme Court of Victoria

EvidenceAffidavit in place out of Victoria — Mandated Territory of New Guinea — Affidavit sworn before commissioner of local Central Court — Certificate under seal of Court — Admissibility of affidavit — Evidence Act 1915 (No. 2647), sec. 116.

McCAUL v. CLARKVLR 233

LOWE, J.·18 July 1929·Supreme Court of Victoria

ContractEvidence — Sale of land — Agent authorised by defendant to make offer to plaintiff — Written authority signed by defendant — Subsequent agreement between plaintiff and defendant's agent in terms of authority — "Memorandum . . . signed by the party to be charged" — Instruments Act 1915 (No. 2672), sec. 228.

IN RE ESPLANADE THEATRE LTD.VLR 237

IRVINE, C.J.·19 July 1929·Supreme Court of Victoria

CompanyWinding-up — Expenses of liquidation — Preferential creditors — "Clerk or servant" — Wages or salary — First charge upon property — Availability of assets — First and second mortgages of land — Debenture by way of floating charge — Burden of statutory charge — Companies Act 1915 (No. 2631), sec. 208.

T. W. CRONIN SHOE PTY. LTD. v. CRONINVLR 244

CUSSEN, J., and IRVINE, C.J.·15 Aug 1929·Supreme Court of Victoria

ContractRestraint of trade — Sale of business and goodwill — Covenant by vendor not to carry on, etc., similar business.

IN RE CLARKEVLR 249

IRVINE, C.J.·8 Aug 1929·Supreme Court of Victoria

WillInterpretation — Hotchpot — Advancement — Parent and child — Double portions — Quarterly payments to daughter by way of income.

MANNING v. SHIRE OF YARRAWONGAVLR 258

MACFARLAN, J.·7 Aug 1929·Supreme Court of Victoria

Local GovernmentRates — Valuation — "Fair capital value" — Commission payable on sale of property — Local Government Act 1915 (No. 2686), sec. 252.

HAYES v. WOOTTONVLR 260

MACFARLAN, J.·7 Aug 1929·Supreme Court of Victoria

LicensingInformation for offence — Informant not present at hearing — Appearance by Licensing Inspector — Justices Act 1915 (No. 2675), sec. 200 — Licensing Act 1915 (No. 2683), secs. 80, 81.

DAWSON v. WATSONVLR 263

MACFARLAN, J.·12 Aug 1929·Supreme Court of Victoria

PracticeCosts — Summons for final judgment — Liberty to defend — Rules of Supreme Court 1916, Order XIV.

MOLONEY v. WILSONVLR 265

MACFARLAN, J.·14 Aug 1929·Supreme Court of Victoria

Pounds and ImpoundingCattle wandering on public road with consent of council — Right of adjoining occupier to impound — Interfering with cattle seized for purpose of being impounded — Local Government Act 1915 (No. 2686), secs. 487, 488 — Pounds Act 1915 (No. 2710), secs. 17, 30.

THE FEDERAL BUILDING SOCIETY v. CURREY, REGISTRAR OF TITLESVLR 269

IRVINE, C.J., Cussen J., Lowe, J.·28 Aug 1929·Supreme Court of Victoria

"Transfer of landTransfer — Registration — Registrar having notice that transfer intended as security for loan — Repayment — Subsequent transfer to third person — Refusal of registration.

IN RE BRIDGMAN’S PATENTVLR 276

LOWE, J.·5 Aug 1929·Supreme Court of Victoria

PatentOpposition — Want of novelty — Prior publicatiom — Patents Act 1903-1921 (No. 21 of 1903-No. 24 of 1921), sec. 56.

R. v. FRANKEVLR 285

Irvine, C.J., Cussen, J., McArthur, J.·30 Aug 1929·Supreme Court of Victoria

Criminal lawDeserting wife and children and leaving them without adequate means of support and going to reside or being resident beyond Victoria — Desertion occurring after departure from Victoria — Interpretation of statutes — Extra-territorial operation — Marriage Act 1915 (No. 2691), sec. 97.*

* Marriage Act 1915 (No. 2691)

IN RE ROWEVLR 290

MacFARLAN, J.·31 May 1929·Supreme Court of Victoria

WillInterpretation — Administration of assets — Devise and bequest of half estate to one, and, after payment of debts, legacies, and the balance to others — Incidence of funeral and testamentary expenses.

McKENNA v. GHURKAVLR 294

LOWE, J.·11 Sept 1929·Supreme Court of Victoria

Police Offences Act 1915 (No. 2708), sec. 82Fortune-telling — Palmistry — "Defraud or impose on," Meaning of.

IN RE McPHERSON, THOM & CO.VLR 295

LOWE, J.·25 Sept 1929·Supreme Court of Victoria

PracticeCosts — Interpleader summons — Applicant's costs, as between solicitor and client, out of fund.

Equitable assignmentAgreement to discharge debt out of proceeds of sale of sheep.

LEVINE v. O’KEEFEVLR 302

CUSSEN, J.·7 Oct 1929·Supreme Court of Victoria

PolicePower to seize and detain goods — Person in possession not arrested — Seizure without warrant.

IN RE GITSHAMVLR 305

LOWE, J.·15 July 1929·Supreme Court of Victoria

Administration and probateExecutor — Commission — Whether commission allowable in respect of land which remains unconverted until conveyed to beneficiary — Transfer of land to beneficiary — Executorial function — Death of executor — Duty of his executor — Administration and Probate Act 1915 (No. 2611), sec. 34.

PracticeProceedings before Chief Clerk — Application to take opinion of Judge on matter arising in the proceedings — Functions of Judge — Rules of Supreme Court 1916, Order LV., r. 69.

IN RE A. LESSER AND COMPANY PTY. LTD.VLR 316

LOWE, J.·2 Sept 1929·Supreme Court of Victoria

CompanyReduction of capital — Practice — Settling list of creditors — Dispensing with — Only creditors those for trade liabilities incurred from day to day — Companies Act 1915 (No. 2631), secs. 53 to 59.

IN RE LONGVLR 318

LOWE, J.·19 Sept 1929·Supreme Court of Victoria

Solicitor and clientLien — Client's documents retained by solicitor — Delivery of documents — Jurisdiction of Court to order — Legal Profession Practice Act 1915 (No. 2681), sec. 8.

IN RE INCOME TAX ACTSVLR 322

IRVINE, C.J.·27 Aug 1929·Supreme Court of Victoria

Income TaxState — Assessment — Shipowner — Return of freight payable — Forwarding charges — Carriage of goods from Victorian port — Transhipment at port of call — Goods forwarded by shipowner — On-carriage not by a vessel of shipowner — Income Tax Act 1915 (No. 2668), sec. 16 (1).

WHATLEY v. WHATLEYVLR 326

LOWE, J.·5 Sept 1929·Supreme Court of Victoria

PracticeTrial by jury — Right to — Husband and wife — Claims by wife against husband for damages for trespass, detention and conversion — Cause or matter previously within the cognizance of the Court in its equitable jurisdiction — Married Women's Property Act 1915 (No. 2692), sec. 15 (1) — Rules of the Supreme Court 1916, Order XXXVI., r. 3.

IN RE BONDVLR 333

CUSSEN, J.·18 Oct 1929·Supreme Court of Victoria

CharityGift by will to "the blind and their children" — Validity — Trusts Act 1915 (No. 2741), sec. 79.