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[1935] VLR(73 results)

Cases reported in this volume of the Victorian Reports

ARBUTHNOT SAWMILLS PTY. LTD. v. THOMASVLR 1

LOWE J.·31 Oct 1934·Supreme Court of Victoria

ArbitrationSubmission — Stay of proceedings — Court of Petty Sessions — Arbitration Act 1928 (No. 3637), sec. 5.

ATTORNEY-GENERAL (EX RELATIONE MILES) v. SHIRE OF FRANKSTON AND HASTINGSVLR 5

LOWE J.·15 Oct 1934·Supreme Court of Victoria

Local GovernmentPowers of municipality — Quarrying — Sale of roadmaking material — Local Government Act 1928 (No. 3720), sec. 391 (14).

MORAN v. CHAPMANVLR 13

Mann J., MacFarlan J., Irvine C.J.·17 Oct 1934·Supreme Court of Victoria

DefamationQualified privilege — Public departmental officer — Answer to inquiry by member of Parliament.

FALK v. HAUGHVLR 20

MANN, J.·31 Oct 1934·Supreme Court of Victoria

Financial Emergency ActsMortgage — Foreclosure — Restriction of mortgagee's right — Interest paid to a date within twelve months — Mortgagee in possession — Receipt of rents — Right of mortgagor to an account — Financial Emergency Act 1931 (No. 3961), sec. 28 — Financial Emergency Act 1932 (No. 4106), sec. 5.

IN RE GEORGEVLR 26

MANN J.·13 Nov 1934·Supreme Court of Victoria

Limitation of actionsMortgage debt — Creditor appointed executor — Time continuing to run — Retainer — Property Law Act 1928 (No. 3754), sec. 304.

McKNIGHT v. WOODINGVLR 30

MacFARLAN J.·5 Dec 1934·Supreme Court of Victoria

Police offencesPossession of property suspected of having been stolen — Actual possession — Goods found in shed used by defendant and other persons — Admissions by defendant — Police Offences Act 1928 (No. 3749), sec. 40.

HATTON v. THE VICTORIAN RAILWAYS COMMISSIONERSVLR 33

IRVINE C.J.·13 Dec 1934·Supreme Court of Victoria

Workers' CompensationArbitration — Award of lump sum — Jurisdiction — Workers' Compensation Act 1928 (No. 3806), sec. 7; Second Schedule, cl. (16).

HEADING v. TOWN HALL HOTEL (MELBOURNE) PTY. LTD.VLR 37

IRVINE C.J.·22 Nov 1934·Supreme Court of Victoria

Licensing"Bar-room" — Liquor "directly served" — Sale in bottle department — Female employee — Licensing Act 1928 (No. 3717), secs. 3, 207.

HILL v. AMOSVLR 41

Irvine C.J.·12 Dec 1934·Supreme Court of Victoria

Landlord and TenantRecovery of possession — Notice of intention to apply to justices — Form of notice — Amendment — Warrant of ejectment expired unexecuted — Issue of fresh warrant — Landlord and Tenant Act 1928 (No. 3710), secs. 69, 72; 7th Sched. — Justices Act 1928 (No. 3708), secs. 4, 96.

IN RE LEARMONTHVLR 44

MANN J.·17 Dec 1934·Supreme Court of Victoria

Administration and ProbateAdministration of assets — Life assurance policy — Policy moneys not assets for payment of debts — Equitable obligations — Companies Act 1928 (No. 3659), sec. 476 (3).

HICKINBOTHAM v. DAWSONVLR 47

MANN J.·13 Dec 1934·Supreme Court of Victoria

HealthFood — Adulteration — Sale — Unopened package — Liability of last vendor — Health Act 1928 (No. 3697), sec. 215; Health Act 1931 (No. 4010), sec. 12.

McCARTNEY v. THE VICTORIAN RAILWAYS COMMISSIONERSVLR 51

Irvine C.J., Mann J., MacFarlan J.·29 Nov 1934·Supreme Court of Victoria

Transport RegulationCommercial goods vehicle — Licence — Refusal by Board — Appeal — Existing transportation service — Railway — Interests of the public generally — Railways deficit — Transport Regulation Act 1933 (No. 4198), secs. 26, 37.

MOORE v. CARRERAS LIMITEDVLR 68

Gavan Duffy J.·7 Dec 1934·Supreme Court of Victoria

CompanyIssue of shares at a premium — Capitalization of premiums — Declaration of capital bonus — Issue of new shares — Payment for shares by bonus — Validity — Companies Act 1928 (No. 3659), secs. 277 (1), 278 (2).

WOTHERSPOON v. STATE SUPERANNUATION BOARDVLR 77

MacFarlan J., Irvine C.J.·3 Dec 1934·Supreme Court of Victoria

Public ServiceSuperannuation — Contributions by officer — Increase of salary — Option to contribute for additional pension — Appeal to County Court — Costs — Superannuation Act 1928 (No. 3782), sec. 13 (1), (4).

IN RE E.VLR 87

MacFARLAN J.·13 Dec 1934·Supreme Court of Victoria

Administration and ProbateExecutor — Person appointed incapable of understanding or carrying out duties — Citation to take out probate — Service — Administration and Probate Act 1928 (No. 3632), sec. 12 (1) (b).

ROWE v. DAVIDSONVLR 89

[Coram STARKE, DIXON, EVATT AND McTIERNAN JJ.]·13 Dec 1934·In the High Court of Australia

Police OffencesLottery — Sale of ticket — Raffle to be drawn at a bazaar — Prior written authority to purchase ticket — Police Offences Act 1928 (No. 3749), secs. 89 (f), 92 (l).

MITCHELL v. CASTERTON HOSPITALVLR 90

MANN J.·11 Feb 1935·Supreme Court of Victoria

Hospitals and charitiesValidity of by-law — Inconsistency with regulation — Effect of repeal of regulation — Hospitals and Charities Act 1928 (No. 3699), sec. 84 (3).

MOORE v. HUBBARDVLR 93

MacFARLAN J.·19 Dec 1934·Supreme Court of Victoria

Police offencesPlacard — Placing on "any wall fence lamp post or gate" — Post other than lamp-post — Police Offences Act 1928 (No. 3749), sec. 5 (10).

LOVERIDGE v. SPARKVLR 96

MacFARLAN J.·20 Dec 1934·Supreme Court of Victoria

LicensingOffence — Carrying away liquor from licensed premises during prohibited hours — Liquor not obtained on the licensed premises — Licensing Act 1928 (No. 3717), sec. 190 (1).

CLARK v. ROHANVLR 101

MANN J.·6 Feb 1935·Supreme Court of Victoria

LicensingDisposal of liquor — Order during trading hours — Delivery after hours — Licensing Act 1928 (No. 3717), sec. 177.

AMALGAMATED HANDWORK MANUFACTURERS CO. v. COLEVLR 103

GAVAN DUFFY J.·19 Dec 1934·Supreme Court of Victoria

Bill of ExchangeCheque — Drawer — Cheque drawn by company — Unqualified personal signature — Intention of signatory — Liability as drawer — Estoppel.

LEE v. WILSONVLR 113

[Coram STARKE, DIXON, EVATT AND McTIERNAN JJ.]·19 Dec 1934·In the High Court of Australia

DefamationLibel in newspaper — Intention to refer to person other than plaintiff — Coincidence of names.

REAL ESTATE SECURITIES LTD. v. KEW GOLF LINKS ESTATE PTY. LTD.VLR 114

LOWE J.·27 Sept 1934·Supreme Court of Victoria

Vendor and purchaserContract of sale — Payment by instalments — Default in payment — Rescission by vendor — Possession by purchaser prior to default — Portion of land transferred to sub-purchasers — Relief against forfeiture of moneys paid — Vendor's damages.

WYATT v. WYATTVLR 127

GAVAN DUFFY J.·19 Feb 1935·Supreme Court of Victoria

DivorceDecree obtained by husband — Power to order monthly or weekly payments to wife — Marriage (Divorce) Act 1933 (No. 4210), sec. 5 (1).

IN RE GLENVLR 129

MANN J.·14 Feb 1935·Supreme Court of Victoria

WillLegacies — Annuities — Deficiency of assets — Valuation of annuities — Legacies and commuted annuities paid — Fund reserved for deferred legacy — Income of fund — Persons entitled — Interest on legacies and commuted annuities.

BEAZLEY v. RYANVLR 135

MANN J., MARTIN J.·20 Mar 1935·Supreme Court of Victoria

Workers' compensationAccident arising out of and in the course of employment — Contract of service made in New South Wales — Accident in Victoria — Jurisdiction of Victorian tribunal — Workers' Compensation Act 1928 (No. 3806), secs. 3, 5.

ANSTEE v. JENNINGSVLR 144

MANN, J., MacFARLAN J., MARTIN, J.·6 Mar 1935·Supreme Court of Victoria

LicensingOffence — Sunday trading — Bond fide traveller — Belief of servant of licensee — Exculpation of licensee — Costs of successful defendant to an information — Licensing Act 1928 (No. 3717), sec. 183 (1).

McCAFFREY v. CARROLLVLR 150

MANN J.·27 Feb 1935·Supreme Court of Victoria

LicensingOffence — Carrying away liquor during prohibited hours — Liquor bought during trading hours — Licensing Act 1928 (No. 3717), sec. 190 (1).

PORTA v. PORTAVLR 154

IRVINE C.J.·29 Mar 1935·Supreme Court of Victoria

DivorcePermanent alimony — Time for application — Marriage (Divorce) Act 1933 (No. 4210), sec. 5 (1).

BRITISH DOMINION FILMS LTD. v. DENTVLR 157

IRVINE C.J.·7 Mar 1935·Supreme Court of Victoria

CostsAction tried with jury — Defamation — Nominal damages — Order depriving plaintiff of costs — "Good cause" — Rules of the Supreme Court, 1916, Order LXV., r. 1.

McGINNIS v. THE UNION BANK OF AUSTRALIA LTD.VLR 161

IRVINE C.J.·13 Mar 1935·Supreme Court of Victoria

PracticeRight to jury — Cause within cognizance of Court in its equitable jurisdiction — Mortgage — Claim by mortgagor for damages for improper exercise of power of sale — Transfer of Land Act 1928 (No. 3791), sec. 148 — Rules of the Supreme Court 1916, Order XXXVI., r. 3.

BOOTH v. BOOTHVLR 165

IRVINE C.J.·13 May 1935·Supreme Court of Victoria

MaintenanceOrder for maintenance — Divorce subsequently obtained on petition of wife — Application by husband to discharge or vary order — Maintenance Act 1928 (No. 3722), sec. 15.

G. C. DICKSON & YORSTON (BUILDERS) PTY. LTD. v. HATTAMVLR 168

MARTIN J.·17 Apr 1935·Supreme Court of Victoria

ContractIllegality — Contract not ex facie illegal — Illegality not pleaded — Enforceability.

FRASER v. MOUSLEYVLR 173

IRVINE C.J.·10 Apr 1935·Supreme Court of Victoria

Transport regulationCommercial passenger vehicle — Operating "for reward" while unlicensed — Agreement to pay fare — No evidence of payment — Offence — Transport Regulation Act 1933 (No. 4198); secs. 5, 45.

EDMUNDS v. EDMUNDSVLR 177

MANN J., LOWE, J.·25 May 1934·Supreme Court of Victoria

DivorceAdultery — Proof — Equivocal circumstances.

HARDWICK v. HARDWICKVLR 193

IRVINE C.J.·19 Mar 1935·Supreme Court of Victoria

DivorceAlimony — Decree on ground of wife's insanity — Respondent detained in hospital outside Victoria — Power to order payments — Marriage (Divorce) Act 1933 (No. 4210), sec. 5 (1).

R. v. SUMNERVLR 197

GAVAN DUFFY J.·15 Apr 1935·Supreme Court of Victoria

Criminal lawPerjury — Evidence of falsity of oath — Admission by accused.

McLEOD v. McLEODVLR 200

GAVAN DUFFY J.·27 May 1935·Supreme Court of Victoria

DivorcePractice — Petitioner beyond the State — Leave to give evidence on affidavit.

THE VICTORIAN RAILWAYS COMMISSIONERS v. McCARTNEYVLR 201

[Coram RICH, STARKE, DIXON, EVATT AND McTIERNAN JJ.]·9 May 1935·In the High Court of Australia

Transport RegulationCommercial goods vehicle — Licence — Refusal by Board — Existing transportation service — Railway — Interests of the public generally — Railways deficit — Condition as to freight charges exacted from Railways Commissioners — Transport Regulation Act 1933 (No. 4198), sec. 26.

ILES v. ORRVLR 203

Irvine C.J., Mann J., Gavan Duffy J.·13 June 1935·Supreme Court of Victoria

HealthFood — Adulteration — Sale — Margarine — Proof of adulteration — Sufficiency of analyst's certificate — Notification of intention to analyze — Condition precedent to liability — Notification "forthwith" — Unopened labelled package — Person deemed to have sold — Health Act 1928 (No. 3697), secs. 215, 235, 241, 249, 271 (f) — Health Act 1931 (No. 4010), sec. 12 — Health (Margarine) Act 1934 (No. 4277), sec. 2.

ILES v. EDIBLE OIL INDUSTRIES PTY. LTD.VLR 230

IRVINE C.J., MANN J., GAVAN DUFFY J.·1 Jan 1935·Supreme Court of Victoria

IN RE HACKETT BROS. LTD.VLR 233

MARTIN J.·30 May 1935·Supreme Court of Victoria

CompanyWinding up — Surplus assets after repayment of preference capital — Arrears of cumulative preferential dividends — Application of surplus.

FALK v. HAUGHVLR 238

[Coram RICH, STARKE, DIXON, EVATT AND McTIERNAN JJ.]·6 June 1935·In the High Court of Australia

Financial Emergency ActsMortgage — Restriction of right of foreclosure — Mortgagee in possession — Receipt of rents — Payment of interest — Account — Financial Emergency Act 1931 (No. 3961), sec. 28 — Financial Emergency (Mortgages) Act 1932 (No. 4106), sec. 5.

THE KING v. MacINDOEVLR 240

GAVAN DUFFY J.·5 July 1935·Supreme Court of Victoria

PracticeGeneral Sessions — Appeal from conviction by Court of Petty Sessions — Appellant absent, but represented — Justices Act 1928 (No. 3708), sec. 137.

IN RE ROUGHTON AND HOLDERS PTY. LTD.’SVLR 243

IRVINE C.J.·21 June 1935·Supreme Court of Victoria

Landlord and tenantStatutory reduction of rent — Order modifying statutory reduction — Duration thereof — Variation of order — Landlord and Tenant (Rent Reduction) Act 1931 (No. 3990), sec. 6 (1), (2), (4) — Landlord and Tenant (Rent Reduction) Continuation Act 1934 (No. 4272), sec. 5.

IN RE RUDDUCKVLR 251

MacFARLAN J.·16 July 1935·Supreme Court of Victoria

WillConstruction — "Heir male" — Gift to A. for life, and at his decease to his heir male, or failing any son to his eldest daughter — Rule in Shelley's Case.

IN RE THOMSONVLR 254

MANN J.·13 Aug 1935·Supreme Court of Victoria

WillConstruction — Forfeiture of interest on alienation prior to "vesting in possession" — Settlement — Limitation to settlor determinable on alienation — Validity as against trustee under deed of arrangement — Commonwealth Bankruptcy Act 1924-1933, Part XII.

MERIGAN v. CITY OF HEIDELBERGVLR 261

MANN J.·16 Aug 1935·Supreme Court of Victoria

Electric Light and PowerPowers of undertaker — Municipal corporation — Expenses of electrical exhibition — Electric Light and Power Act 1928 (No. 3672), sec. 19.

IN RE SAVAGEVLR 266

MacFARLAN J.·30 July 1935·Supreme Court of Victoria

WillConstruction — Trust to apply rents to maintenance of children of C until they respectively attain twenty-one — Direction to sell property and distribute proceeds among children when youngest attains twenty-one — C widowed and aged fifty-eight — Youngest living child twenty-one — Time for sale and distribution.

DIX v. DIXVLR 270

Irvine C.J.·19 Aug 1935·Supreme Court of Victoria

DivorceFrequent convictions for crime — Four convictions on one day — Marriage Act 1928 (No. 3726), sec. 75 (c).

IN RE DYERVLR 273

Gavan Duffy J.·2 Aug 1935·Supreme Court of Victoria

CharityRule against perpetuities — Trust of income to maintain orchestra — Remote applicability — Power reserved to "vary" trusts.

McKITTERICK v. RYANVLR 291

MacFARLAN J.·31 July 1935·Supreme Court of Victoria

Stock mortgage"Stock" — Swine — Instruments Act 1928 (No. 3706), sec. 66.

MACHIN v. FAIRWEATHERVLR 294

MANN J.·14 Aug 1935·Supreme Court of Victoria

Transport RegulationCommercial passenger vehicle — Passengers paying separate and distinct fares — Knowledge of owner — Offence — Transport Regulation Act 1933 (No. 4198), secs. 5, 45.

EASTGATE v. EASTGATEVLR 297

GAVAN DUFFY J.·21 Aug 1935·Supreme Court of Victoria

DivorceOrder for permanent alimony — Application for discharge — Allegation of unchastity — Marriage (Divorce) Act 1933 (No. 4210), sec. 5.

In re TORMEYVLR 300

MANN J.·3 Sept 1935·Supreme Court of Victoria

WillConstruction — "Effects in the house in which I now reside" — Motor car in detached garage.

HUDD v. RYANVLR 302

MANN J.·4 Sept 1935·Supreme Court of Victoria

Motor carRegistration fees — Car "used" for carrying passengers for hire — User on single occasion — Motor Car Act 1928 (No. 3741), sec. 4 (5) (b); Second Schedule, Proviso (b).

HUDD v. RYANVLR 306

MANN J.·18 Sept 1935·Supreme Court of Victoria

Transport RegulationCommercial passenger vehicle — "Carrying passengers for reward at separate and distinct fares for each passenger" — Only one passenger carried — Offence — Transport Regulation Act 1933 (No. 4198), secs. 5, 45.

IN RE HACKETT BROS. LTD.VLR 309

Irvine, C.J., MacFarlan, J. Gavan Duffy, J.·29 Aug 1935·Supreme Court of Victoria

CompanyVoluntary winding up — Memorandum — Construction — Preference shares — Fixed cumulative preferential dividend — Dividend not declared — Arrears of dividend — Repayment of capital — Priority.

OZONE ESTATES PTY. LTD. v. CITY OF SANDRINGHAMVLR 319

MANN C.J.·3 Oct 1935·Supreme Court of Victoria

Local GovernmentRating — Rateable property — Plan of subdivision lodged with council — Land not subdivided in fact — Assessment of allotments — Appeal to justices — Finality — Order to review — Local Government Act 1928 (No. 3720), sec. 301 (5) — Justices Act 1928 (No. 3708), sec. 150.

IN RE BODEYVLR 326

IRVINE C.J.·28 Aug 1935·Supreme Court of Victoria

Administration and ProbateExpenses of administering will — Share of residue to bear — State probate duty — Administration and Probate Act 1928 (No. 3632), secs. 162, 163.

IN RE DOUGHARTYVLR 333

MANN, J.·25 Sept 1935·Supreme Court of Victoria

WillConstruction — Settlement of three-fourths of daughters' shares — Life interest to daughter, remainder to other children — Daughter's share to be settled — "Issue" to take "by way of substitution" — "Issue" read as "children" — Breach of trust by parent as executor — Administration action — Declaration that parent and those claiming under him have no further interest — Bight of child to share.

MORNANE v. ALL RED CARRYING CO. PTY. LTD.VLR 341

MANN J.·30 Sept 1935·Supreme Court of Victoria

Landlord and tenantWeekly tenancy — Notice to quit — Date of expiration — Summary proceedings to recover possession — Notice of owner's intention to apply to justices — Company as tenant — Service — Landlord and Tenant Act 1928 (No. 3710), sec. 70.

O’BRIEN v. CLENDENNINGVLR 348

Mann C.J.·9 Oct 1935·Supreme Court of Victoria

County CourtPractice — Leave to proceed in form pauperis — Poor Persons Legal Assistance Act 1928 (No. 3751), sec. 10.

MILNER v. MILNERVLR 352

MacFARLAN J.·7 Oct 1935·Supreme Court of Victoria

DivorceFrequent convictions — "Sentenced in the aggregate to imprisonment for three years" — Concurrent sentences — Marriage Act 1928 (No. 3726), sec. 75 (c).

COWE v. DELANEYVLR 356

MANN J.·25 Sept 1935·Supreme Court of Victoria

Pounds and ImpoundingPony grazing on highway — Rescuing cattle seized for the purpose of being impounded — Legality of seizure — "Impounded" — Local Government Act 1928 (No. 3720), sec. 544 — Pounds Act 1928 (No. 3752), sec. 30 (i.).

THOMSON v. LEEVLR 360

MANN C.J.·18 Oct 1935·Supreme Court of Victoria

JusticesInformation — Variance — Amendment — Order to reiew — Answering affidavit — Justices Act 1928 (No. 3708), sec. 196.

SEELIGSON v. CITY OF MELBOURNEVLR 365

MANN C.J.·16 Oct 1935·Supreme Court of Victoria

Local GovernmentBy-law — Validity — Distribution of handbills — Local Government Act 1928 (No. 3720), sec. 197 (1) (xxxiii).

FRASER v. BRENNANVLR 371

MacFARLAN J.·9 Oct 1935·Supreme Court of Victoria

StampsReceipt given by servant — Liability of master to penalty — Stamps Act 1928 (No. 3775), sec. 55.

R. v. BRADLEY AND LEEVLR 373

Mann C.J.·1 Nov 1935·Supreme Court of Victoria

JusticesCourts of General Sessions — Criminal jurisdiction — Coinage offences — Justices Act 1928 (No. 3708), sec. 187, cl. (iv.).

THE KING v. THE JUSTICES OF THE PEACE AT MELBOURNE AND ROWEVLR 377

MANN, J.·27 Sept 1935·Supreme Court of Victoria

JusticesCourt of Petty Sessions — Police offences — Information — Informant wishing to withdraw information and declining to prosecute — Power to compel him to adduce evidence.

HOWARD-SMITH v. COMPTROLLER OF STAMPSVLR 387

GAVAN DUFFY J.·31 Oct 1935·Supreme Court of Victoria

StampsSettlement or gift, deed of — Instrument whereby property is settled or given — Equitable interest — Assignment — Interest under will — Direction by beneficiary to executor to pay to third persons — Stamps Act 1928 (No. 3775), Third Schedule, Part IX.

WEST v. FOWLERVLR 404

MANN C.J.·23 Oct 1935·Supreme Court of Victoria

Factories and ShopsRecovery of premium — Commission of offence — Absence of conviction — Factories and Shops Act 1934 (No. 4275), sec. 27.

IN RE INCOME TAX ACTSVLR 407

Mann C.J., Gavan Duffy J. Martin J.·31 Oct 1935·Supreme Court of Victoria

Income TaxAssessment — Assessable income — Taxpayer employed for fixed term — Employment terminated — Compensation — Payment by instalments — Four-weekly payments of annual sum — Income or capital — Income Tax Act 1928 (No. 3701), sec. 4.