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[1930] VLR(60 results)

Cases reported in this volume of the Victorian Reports

SLEIGH v. WATTVLR 1

Irvine, C.J., Cussen J.·4 Sept 1929·Supreme Court of Victoria

ContractContract of service — Employment as manager of department of branch business — Remuneration by commission on "net profits" of department — Meaning and ascertainment of net profits — Deduction of interest on capital — Deduction of amount of commission.

IN RE PEACOCKVLR 9

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

ContractTransmissibility — Employment of agent to collect rents, assist in investment and generally to manage, etc. — Contract of personal nature — Termination by death of party.

TrusteesRemuneration — Commission on corpus allowed by will — Conversion and distribution postponed for ten years — When commission payable — Value of corpus, as at what time.

IN RE A. E. HIGGINS PTY. LTD.VLR 21

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

CompanyLiquidation — Contributory — Contract to take shares induced by misrepresentation — Effective disaffirmance of contract — Subsequent liquidation — Contributory's name not on register of members, but included in return of allotments — Removal of name from list of contributories.

SCOTT v. COMMERCIAL HOTEL MERBEIN PTY. LTD.VLR 25

Irvine, C.J., Macfarlan, J. Lowe, J.·11 Oct 1929·Supreme Court of Victoria

JusticesOrder to review — Application for, made within one month and adjourned by Judge — After expiry of the month application heard and order nisi granted by another Judge — Justices Act 1915 (No. 2675), sec. 150.

HealthDeposit of refuse where it may be a nuisance or dangerous to health — Health Act 1919 (No. 3041), sec. 42 (2).

TILT v. TILT’S CAFES LTD.VLR 31

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

ContractConstruction — Contract of service — Employment as managing director of company — Remuneration by commission on "net profits" of company — Meaning and ascertainment of net profits — Deduction of income tax and of commission.

HILL v. JOHNSTONVLR 35

MACFARLAN, J.·8 Nov 1929·Supreme Court of Victoria

MaintenanceRefusal of order by justices — Application to Court of General Sessions to hear complaint — Notice of intention to apply — Time prescribed by rules — Whether rules retrospective — Marriage Act 1928 (No. 3620), sec. 8 (3), (4) — Rules of 1st May, 1929.

VICTORIA GOLF LINKS ESTATE PTY. LTD. v. HOWELLVLR 41

IRVINE, C.J.·22 Nov 1929·Supreme Court of Victoria

PracticeJury, trial by — "Cause or matter within the cognizance of the Court in its Equitable Jurisdiction" — Meaning of "cause or matter" — Claim for money due under contract — Fraud, defence of — Rescission, counterclaim for — Whether right to jury — Rules of the Supreme Court 1916, Order XXXVI., rr. 3, 6.

DEELEY v. RYANVLR 43

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

Police offencesBetting house — Using house for purpose of betting — Person left in charge of house by occupier for the purpose of conducting a lawful business — Police Offences Act 1915 (No. 2708), secs. 97, 98.

IN RE CROTHERSVLR 49

Cussen, J., McArthur, J., Macfarlan, J.·9 Sept 1929·Supreme Court of Victoria

InsuranceLife assurance policy — Assignment — Validity — Document not in statutory form — Agreement to assign — Marshalling of assets — Marshalling by apportionment — Companies Act 1915 (No. 2631), secs. 476, 478-480.

LEVINE v. O’KEEFEVLR 70

MANN, J.·3 Dec 1929·Supreme Court of Victoria

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

SHIRE OF LILLYDALE v. GAINEYVLR 73

MCARTHUR, J.·27 Sept 1929·Supreme Court of Victoria

Local GovernmentDrains — Formation by municipal council — Recovery of cost from adjacent owners — Local Government Act 1915 (No. 2686), secs. 527, 529-535, Part XXXVI — Local Government Act 1921 (No. 3167), sec. 35 — Alternative schemes — Council's option — Resolution of council — "Omnia prsumuntur rite esse acta."

GUMMOW v. BLOOMVLR 81

IRVINE, C.J.·20 Nov 1929·Supreme Court of Victoria

Solicitor and clientRetainer — Evidence of — Authority to commence legal proceedings.

IN RE McLEANVLR 85

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

WillPower of appointment — Power to appoint generally to children — Appointment to daughter with power to appoint to her children — Validity.

SULLIVAN v. VICTORIAN RAILWAYS COMMISSIONERSVLR 94

MANN, J.·13 Oct 1929·Supreme Court of Victoria

WrongsNegligence — Master and servant — Negligence of fellow-servant — Defence of common employment — Person having "charge or control" of points upon railway — Employers and Employs Act 1915 (No. 2646), sec. 35 (5).

County CourtAppeal to Full Court from refusal to grant new trial — Appeal allowed — New trial in County Court — County Court Act 1915 (No. 2636), sec. 133.

IN RE FARRELLVLR 101

Lowe, J.·14 Nov 1929·Supreme Court of Victoria

AdministrationIntestacy — Real estate — Nature of right of next of kin to estate — Act No. 230 (1864), sec. 4.

IN RE RIDGEWAYVLR 111

IRVINE, C.J.·2 Dec 1929·Supreme Court of Victoria

Vendor and purchaserContract — Sale of land — Land under Transfer of Land Act — Illusory encumbrance noted on register — Bight of purchaser to insist on "clean" certificate of title — Rescission — Transfer of Land Act 1915 (No. 2740), secs. 4, 72; 25th Schedule, Table A, Condition 5.

CURREY v. FEDERAL BUILDING SOCIETYVLR 121

[Coram KNOX, C.J., ISAACS, RICH AND DIXON, JJ.]·28 Oct 1929·In the High Court of Australia

Transfer of landInstrument of transfer — Transfer intended as security for loan — Assignment of right to redeem — Transfer on redemption — Refusal of registration — "Conveyance" — Stamps Act 1915 (No. 2728), sec. 68 (6).

McPHERSON v. THE MELBOURNE AND METROPOLITAN BOARD OF WORKSVLR 122

IRVINE, C.J.·2 Dec 1929·Supreme Court of Victoria

PracticeTrial by jury — "Cause or matter within the cognizance of the Court in its Equitable Jurisdiction" — Claim by Crown — Money due under Statute — Claim for equitable relief — Rules of the Supreme Court 1916, Order XXXVI., r. 3.

IN RE MURPHYVLR 127

McARTHUR, J.·4 Feb 1930·Supreme Court of Victoria

Administration and ProbateAdministration — Power of administrator to concur in a partition — Trustee Act 1928 (No. 3792), sec. 57.

AUSTRALIAN TRAMWAYS EMPLOYEES’ ASSOCIATION v. BATTENVLR 130

McARTHUR, J.·6 Feb 1930·Supreme Court of Victoria

Conciliation and arbitrationPowers of registered organization — Publication of newspaper — Advertisements, claims in respect of — Right of organization to sue as legal entity — Commonwealth Conciliation and Arbitration Act 1904-1928, secs. 55, 58, 66, Schedule B.

ROGERS v. FRYVLR 134

McARTHUR, J.·25 Feb 1930·Supreme Court of Victoria

PracticeProcedure — Originating summons — Mortgage — Default by mortgagor — Claim by mortgagee for delivery of possession — No claim for sale or foreclosure — Procedure by originating summons not available — Rules of the Supreme Court 1916, Order LV., r. 5A.

TASSIE v. SCOTTVLR 138

McARTHUR, J.·6 Feb 1930·Supreme Court of Victoria

HealthFood, sale of — Package not marked with name of manufacturer or packer — "Prosecution or proceeding relating to food" — Return date of summons — Health Act 1919 (No. 3041), secs. 231, 262 (d).

MURPHY v. LIESFIELDVLR 142

Irvine, C.J., MacFarlan, J., Lowe, J.·12 Mar 1930·Supreme Court of Victoria

EvidenceSolicitor and client — Proof of retainer.

VICTORIA GOLF LINKS ESTATE PTY. LTD. v. HOWELLVLR 148

Mann, J., MacFarlan, J., Lowe, J.·17 Mar 1930·Supreme Court of Victoria

PracticeJury — Trial by — Action begun in County Court — Claim for money due under contract — Defence of fraud — Counterclaim for rescission — Notice by defendant requiring jury — Subsequent transfer of proceeding to Supreme Court — Right of defendant to jury — Rules of Supreme Court 1916, Order XXXVI., rr. 3, 6, 7.

CRAVEN v. CITY OF RICHMONDVLR 153

Irvine, C.J., McArthur, J.·24 Oct 1929·Supreme Court of Victoria

Local GovernmentHealth — By-law — Validity — Subsequent repeal of statutory authority — By-law "deemed to be made" under repealing Act — No power to make such by-law under repealing Act — Local Government Act 1915 (No. 2686), secs. 197 (33), 232 — Supreme Court Act 1915 (No. 2733), sec. 203 — Health Act 1919 (No. 3041), secs. 3 (2) (b), 74 (a), 75 (b).

HOUSE v. THE LIFE INSURANCE COMPANY OF AUSTRALIA LTD.VLR 165

LOWE, J.·19 Mar 1930·Supreme Court of Victoria

CostsTaxation — Instructions for brief — Review by Court — Reasonableness of incurring costs — Rules of the Supreme Court 1916, Order LXV., rules 27 (41), 28.

NEALE ADS PROPRIETARY LIMITED v. COUNTRY ROADS BOARDVLR 169

Lowe, J., McArthur, J., Cussen, J.·29 Oct 1929·Supreme Court of Victoria

By-lawValidity — Country Roads Board — Power to regulate or prohibit erection of hoardings — Power to regulate, restrict, prevent or control exhibition of advertisements — Prohibition of such erection and exhibition without consent of Board — Discretion to order removal of hoardings — Country Roads Act 1927 (No. 3568), sec. 3 — Local Government Act 1915 (No. 2686), sec. 198 (1) (2).

THOMSON v. SAMPSONVLR 191

WASLEY, A.-J.·2 Apr 1930·Supreme Court of Victoria

LicensingBar door to be kept locked during prohibited hours — Absolute duty — Licensing Act 1928 (No. 3717), sec. 206.

ORTNER v. THE AUTOMOBILE INSURANCE CO. OF AUSTRALIA LTD.VLR 194

Irvine, C.J., Mann, J., Lowe, J.·14 Mar 1930·Supreme Court of Victoria

InsuranceMotor car — Policy — Interpretation — Exception of loss whilst used in "reliability, speed or other trial," or if used for purpose other than "business and pleasure" — Non-disclosure of intention to race — Loss of car whilst being prepared for a race.

R. v. GRIFFITHSVLR 204

Mann, J., McArthur, J., Lowe, J.·3 Apr 1930·Supreme Court of Victoria

Criminal lawEvidence — Identification of prisoner — Use of photograph in discovery of offender.

VAUX v. VAUXVLR 208

IRVINE, C.J.·14 Apr 1930·Supreme Court of Victoria

DivorceAlimony, order for — Subsequent marriage of wife — Discharge, variation or suspension of order — Marriage Act 1928 (No. 3726), sec. 96.

IN RE INCOME TAX ACTSVLR 211

Irvine, C.J., Macfarlan, J., Lowe, J.·5 May 1930·Supreme Court of Victoria

Income TaxState — Assessment — Deductions — Gift to "public benevolent asylum" — Freemasons' Homes — Income Tax Act 1915 (No. 2668), sec. 29 — Income Tax Act 1928 (No. 3701), sec. 36.

EDWARDS v. WEEKSVLR 225

MacFARLAN, J.·23 May 1930·Supreme Court of Victoria

PracticePleading — Particulars — Negligence — Particulars of contributory negligence — Plaintiff riding a motor cycle without being licensed.

RIDGEWAY v. SHARPVLR 226

Mann, J., McArthur, J., Lowe, J.·30 May 1930·Supreme Court of Victoria

Husband and wifeNecessaries — Wife's costs of suit for judicial separation — Suit terminated by agreement — No order as to costs — Right of wife's solicitor to recover costs from husband — Marriage Act 1915 (No. 2691), sec. 159.

IN RE INCOME TAX ACTSVLR 233

IRVINE, C.J., MacFARLAN, J., LOWE, J.·5 May 1930·Supreme Court of Victoria

Income TaxState — Assessment — Company — "Profits" — Company carrying on business of buying and selling land — Sales on extended terms — Profits earned or derived during year — Income Tax Act 1915 (No. 2668), sec. 35 — Income Tax Act 1928 (No. 3701), sec. 42.

IN RE A. W. ALLEN LIMITEDVLR 251

McARTHUR, J., MANN, J., MacFARLAN, J., LOWE, J.·27 May 1930·Supreme Court of Victoria

CompanyScheme of arrangement — Sanction by Court — Altering rights of preference shareholders — Opposition by substantial minority — No sufficient reason for scheme — Companies Act 1928 (No. 3659), secs. 52, 129.

IN RE MILES’S PATENTVLR 272

MANN, J.·24 June 1930·Supreme Court of Victoria

PatentExtension, application for — Loss or damage by reason of hostilities — Loss by patentee as such — Trade depression after cessation of hostilities — Patents Act 1903-1921, sec. 84 (6) and (7).

IN RE WHITEVLR 277

IRVINE, C.J.·10 June 1930·Supreme Court of Victoria

WillAccumulation of income — Accumulation beyond period of twenty-one years from death of testator — Trust for payment of annuities — Bequest of "my property" to named persons after death of annuitants — Thellusson Act — Property Law Act 1928 (No. 3754), sec. 164.

CITY OF CAMBERWELL v. COOPERVLR 289

MANN, J.·18 June 1930·Supreme Court of Victoria

Local GovernmentEvidence — Crossings over footpaths and channels — Crossing made by municipal council at owner's request — Work not done under any statutory requirement — Claim by council for work and labour done — Effect of certificate under Local Government Act 1928 (No. 3720), sec. 385.

WOOD v. W. & G. DEAN PROPRIETARY LIMITEDVLR 293

[Coram KNOX, C.J., ISAACS AND STARKE, JJ.]·12 Dec 1929·In the High Court of Australia

CompanyShares — Insolvency of member — Claim by assignee in insolvency to be registered as member — No relevant transmission clause in articles — Table A excluded — Right of assignee to registration — Insolvency Act 1915 (No. 2671), secs. 4, 154, 166.

IN RE CALLAHANVLR 294

MacFARLAN, J.·29 May 1930·Supreme Court of Victoria

WillSubstitutionary provision in event of death of beneficiaries — Additional gift by codicil to a beneficiary under the will — Death of that beneficiary before testator — Application of substitutionary provision to gift by codicil.

IN RE LAYLANDVLR 300

McARTHUR, J.·31 July 1930·Supreme Court of Victoria

Administration and probateWill — Foreign company appointed executor — Grant of administration c.t.a. to syndic — Syndic not in Victoria — Administration and Probate Act 1928 (No. 3632), ss. 5, 51.

SHIRE OF DONALD v. RUSTON AND HORNSBY (AUSTRALIA) PTY. LTD.VLR 302

MANN, J.·18 June 1930·Supreme Court of Victoria

PracticeTrial by jury — Cause requiring scientific investigation — Construction, etc., of engine — Rules of the Supreme Court 1916, Order XXXVI., r. 5.

SCHULZ v. BENNETTVLR 307

MANN, J.·18 June 1930·Supreme Court of Victoria

PracticePleading — Indorsement on writ in lieu of statement of claim — Signature of solicitor or counsel — Rules of the Supreme Court, 1916, Order XVIIIA, r. 7, Order XIX., r. 4.

IN RE HALLVLR 309

LOWE, J.·21 Aug 1930·Supreme Court of Victoria

Administration and probateSealing of foreign probate — Revocation of foreign grant — Revocation of sealing — Administration and Probate Act 1928 (No. 3632), sec. 81.

CLAUSCEN & CO. v. JONESVLR 310

McARTHUR, J.·23 July 1930·Supreme Court of Victoria

Landlord and tenantDistress for rent — Exemption of goods not the property of the tenant — Goods comprised in a hire purchase agreement made by the tenant — Landlord and Tenant Act 1928 (No. 3710), sec. 64.

IN RE SKELTONVLR 323

LOWE, J.·21 Aug 1930·Supreme Court of Victoria

Administration and probateWill — Execution — Acknowledgment — Wills Act 1928 (No. 3808), sec. 7.

COX v. SNOWBALL & KAUFMANNVLR 325

Mann, J., McArthur, J., Lowe, J.·13 June 1930·Supreme Court of Victoria

PracticeAppeal — New trial — Miscarriage of justice — Power to remedy — Miscarriage caused solely by defeated party.

IN RE BONESVLR 346

LOWE, J.·29 Aug 1930·Supreme Court of Victoria

CharityImprovement of a city — Bequest to be expended in — Validity.

PERPETUAL EXECUTORS AND TRUSTEES ASSOC. OF AUST. LTD. v. RUSSELLVLR 350

WASLEY, A.J.·5 Aug 1930·Supreme Court of Victoria

ContractEvidence — Statute of Frauds — Landlord and tenant — Lease — Option to purchase — Parol agreement — Purported exercise of option — Retention of possession by tenant after expiration of term — Option as defence and as counterclaim — Instruments Act 1915 (No. 2672), sec. 228; Instruments Act 1928 (No. 3706), sec. 128.

GILBERT v. HASLAMVLR 354

MANN, J.·24 Sept 1930·Supreme Court of Victoria

Imprisonment of fraudulent debtorsWarrant of commitment — Cancellation — Substitution of new warrant — Issue of more than one warrant — Imprisonment of Fraudulent Debtors Act 1928 (No. 3700), sec. 23 — Justices Act 1928 (No. 3708), sec. 26.

THE MELBOURNE HARBOR TRUST COMMISSIONERS v. VICTORIAN LIGHTERAGE PTY. LTD.VLR 357

Macfarlan, J.·5 Sept 1930·Supreme Court of Victoria

Melbourne Harbor TrustObstruction to navigation — Sunken vessel — Removal by Commissioners — Recovery of cost — Melbourne Harbor Trust Act 1928 (No. 3733), secs. 89, 90.

MELBOURNE HUNT CLUB v. FEDERAL COMMISSIONER OF LAND TAXVLR 365

MACFARLAN, J.·19 June 1930·Supreme Court of Victoria

Land Tax (Commonwealth)Exemption — Land used primarily and principally for purposes of athletic sports and exercises — Land owned by fox-hunting club — Land used for maintaining hounds — Land Tax Assessment Act 1910-1928 (No. 22 of 1910 — No. 34 of 1928), sec. 13 (h).

CRAWLEY v. LAIDLAWVLR 370

LOWE, J.·19 Aug 1930·Supreme Court of Victoria

EvidenceScientific instrument — Weighing machine — Presumption of accuracy — "Loadometer" — Weights and Measures Act 1928 (No. 3802), sec. 68.

IN RE J. C. WILLIAMSON LTD.’S COPYRIGHTVLR 376

MANN, J.·12 Sept 1930·Supreme Court of Victoria

CopyrightRegistration — Proof of title — Functions of Registrar — Performing right — Musical play — Separate registration of libretto and music — Copyright Act 1912 (No. 20 of 1912), sec. 28.

IN RE MILLANEVLR 381

Mann, J.·5 Sept 1930·Supreme Court of Victoria

PracticeVexatious legal proceedings — Order that no legal proceedings be instituted without leave of Supreme Court — Supreme Court Act 1928 (No. 3783), sec. 33.

IN RE AN ARBITRATION BETWEEN BOWMAN AND THE STATE RIVERS AND WATER SUPPLY COMMISSIONVLR 388

McArthur, J., Macfarlan, J., Lowe, J.·8 Sept 1930·Supreme Court of Victoria

Compulsory acquisition of landCompensation — Amount as consideration for compulsory taking — Water Act 1928 (No. 3801), sec. 256.

SHILTON v. MILLERVLR 400

MacFARLAN, J.·8 Oct 1930·Supreme Court of Victoria

Justices of the peaceJurisdiction — Territorial limits — Summons on a civil complaint — Default summons returnable in one bailiwick issued by a justice appointed only for another bailiwick — Justices Act 1928 (No. 3708), secs. 6, 20, 22, 29, 32, 99, Second Schedule: Forms 3, 64.

DOWLING v. DOWLINGVLR 408

MANN, J.·4 Sept 1930·Supreme Court of Victoria

DivorcePractice — Adultery — Damages — Trial by jury — Want of prosecution — Divorce Rules, r. 48.

MALLESON, STEWART, STAWELL & NANKIVELL v. WILLIAMSVLR 410

MANN, J.·2 Oct 1930·Supreme Court of Victoria

SolicitorCosts — Bill containing details of services rendered — Lump sum charge — Supreme Court Act 1928 (No. 3783), sec. 92.