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[1936] VLR(57 results)

Cases reported in this volume of the Victorian Reports

R. v. SAWYERVLR 1

Mann C.J., MacFarlan J., Gavan Duffy J.·6 Nov 1935·Supreme Court of Victoria

Criminal lawFalse pretences — Representation of existing fact — Statement of intention to do future act.

MILLANE v. SHIRE OF HEIDELBERGVLR 8

Martin J.·31 Oct 1935·Supreme Court of Victoria

BankruptcyAction — Trespass to land — Special damage — Exemplary damages — Bankruptcy of plaintiff — Abandonment of action by assignee — Continuance by plaintiff — Pleading — Material facts — Insolvency Act 1915 (No. 2671), sec. 176 — [Insolvency Act 1928 (No. 3705), sec. 176] — [Bankruptcy Act 1924-1933, sec. 63 (3)] — Order XIX., rule 4.

WOOLF v. S.L. SNIPE PTY. LTD.VLR 22

Martin J., MacFarlan J.·13 Sept 1935·Supreme Court of Victoria

CompanyMemorandum of association — Construction — Objects clause — Drawing, etc., negotiable instruments — Ultra vires — Promissory note given for director's private liability — Liability of company to payee.

H.P. BRADY PTY. LTD. v. KIRSCHVLR 44

MARTIN J.·28 Nov 1935·Supreme Court of Victoria

ArbitrationAction on building contract — Arbitration clause — Defendant unaware of clause when proceedings commenced — Application for stay — Arbitration Act 1928 (No. 3637), sec. 5.

IN RE O’DEAVLR 48

MARTIN J.·28 Nov 1935·Supreme Court of Victoria

Administration and probateApplication for grant — Application referred to Court — Grant of administration c.t.a. — Caveat lodged after grant but before issue — Administration and Probate Act 1928 (No. 3632), sec. 52.

WINSLOW v. WILSONVLR 52

Mann C.J., MacFarlan J., Wasley A.J.·9 Dec 1935·Supreme Court of Victoria

Landlord and TenantGoods or chattels on leased premises — Execution — Warrant of distress under Justices Act — Non-payment of rent before removal of goods — Landlord and Tenant Act 1928 (No. 3710), sec. 12.

IN RE STANLEY W. JOHNSON PTY. LTD.VLR 59

MacFARLAN J.·12 Nov 1935·Supreme Court of Victoria

CompanyExtraordinary resolution — Notice — Waiver by shareholders present at meeting — Companies Act 1928 (No. 3659), sec. 76.

IN RE RITCHIEVLR 64

MANN J.·17 Sept 1935·Supreme Court of Victoria

WillConstruction — Annuity — Shares of residue — Income to children for life — Unequal advances in lifetime of testator — Adjustment between children — Hotchpot.

SEELEY v. JAMES CHARLES HALPIN PTY. LTD.VLR 76

MANN C.J.·14 Nov 1935·Supreme Court of Victoria

Constitutional lawFreedom of inter-state trade — Dairy products — Control of marketing — Notice promulgating quota — The Constitution (63 & 64 Vict. c. 12), sec. 92 — Dairy Products Act 1933 (No. 4204), secs. 6, 8, 15.

R. v. MANNINGVLR 84

GAVAN DUFFY J.·10 Dec 1935·Supreme Court of Victoria

Criminal LawBail — Conviction — Bail pending appeal — Crimes Act 1928 (No. 3664), sec. 605 (2).

PURCELL v. MULCAHYVLR 87

GAVAN DUFFY J.·11 Dec 1935·Supreme Court of Victoria

Police offencesObstruction of constable executing warrant of distress — Place where warrant may be executed — Judgment debtor resident in house of stranger — Justices Act 1928 (No. 3708), sec. 112 — Police Offences Act 1928 (No. 3749), sec. 185.

THE PERPETUAL TRUSTEES EXECUTORS & AGENCY CO. OF TASMANIA LTD. v. MacGOWANVLR 90

LOWE J.·13 Feb 1936·Supreme Court of Victoria

PracticeSummons for final judgment — Time — Vacation — Rules of Supreme Court 1916, Order XIV., rr. 1, 2; Order LXIV., r. 4.

IN RE F. WATKINS PTY. LTD.VLR 92

LOWE J.·7 Feb 1936·Supreme Court of Victoria

Lands CompensationCosts of arbitration — Taxation between party and party — Melbourne and Metropolitan Board of Works Act 1928 (No. 3731), sec. 211 — Lands Compensation Act 1928 (No. 3711), sec. 30.

IN RE FOWLESVLR 96

LOWE J.·21 Feb 1936·Supreme Court of Victoria

Administration and ProbateSummons to executor to file statement for duty — Service out of jurisdiction — Setting aside order made on summons — Administration and Probate Act 1928 (No. 3632), sec. 155 — Service and Execution of Process Act 1901-1931 (No. 11 of 1901 — No. 45 of 1931), sec. 11 (1).

R. v. SODEMANVLR 99

Mann C.J., Macfarlan J.·6 Mar 1936·Supreme Court of Victoria

Criminal lawInsanity — Burden of proof — Direction to jury.

ROWE v. BUTCHERVLR 103

Mann C.J.·3 Mar 1936·Supreme Court of Victoria

Police OffencesSecond offence — Information alleging prior conviction — Evidence thereof, when it may be given — Police Offences Act (No. 3749), sec. 104.

THORBURN v. SKILL BALL PTY. LTD.VLR 108

LOWE J.·13 Feb 1936·Supreme Court of Victoria

Police OffencesBetting — Money received as consideration for undertaking to pay thereafter money on sporting contingency — Game of skill played for money prize — Entry fee paid by players — Police Offences Act 1928 (No. 3749), sec. 97 (b).

PATTERSON v. SHIRE OF BUNGAREEVLR 114

LOWE J.·26 Feb 1936·Supreme Court of Victoria

HealthCommission of Public Health — Powers — Failure of council to appoint inspector — Appointment of same person by Commission to more than one municipality — Health Act 1928 (No. 3697), sec. 22.

IN RE ANDREWSVLR 121

GAVAN DUFFY J.·17 Mar 1936·Supreme Court of Victoria

WillConstruction — Name of beneficiary left blank — Executor, whether taking virtute officii or beneficially — Ceasing to be executor on authorizing trustee company to act — Forfeiture of rights — Trustee Companies Act 1928 (No. 3793), sec. 6.

SMITH v. SMITHVLR 126

MANN C.J.·7 Feb 1936·Supreme Court of Victoria

DivorceAlimony — Means and ability to pay — Order for portion of arrears — Imprisonment of Fraudulent Debtors Act 1928 (No. 3700), Pt. I. — Maintenance and Alimony (Imprisonment) Act 1935 (No. 4314), sec. 9.

WINGROVE v. FRASERVLR 132

LOWE J.·26 Feb 1936·Supreme Court of Victoria

Husband and wifeAgency of necessity — Husband's liability for necessaries — Adultery of wife — Condonation.

Maintenance agreementResumption of matrimonial relations — Wife's departure to another country — Agreement not discharged.

FILTRATION AND WATER SOFTENING PTY. LTD. v. JOHN THOMPSON (AUSTRALIA) PTY. LTD.VLR 140

LOWE J.·28 Feb 1936·Supreme Court of Victoria

PatentPractice — Particulars of objection of want of novelty — Striking out — Limitation to claims alleged to be infringed — Patents Act 1903-1935 (No. 21 of 1903 — No. 16 of 1935), sec. 90.

SHIRE OF ROCHESTER v. PAINVLR 146

Mann C.J., MacFarlan J. Martin J.·7 Apr 1936·Supreme Court of Victoria

Local GovernmentRates — Land held by State Rivers and Water Supply Commission — Property of His Majesty used for public purposes — Whether occupied for private purposes — Residence of water bailiff — Water Act 1928 (No. 3801), secs. 3, 19, 303 — Local Government Act 1928 (No. 3720), sec. 249.

LOWDEN v. RALPHVLR 156

GAVAN DUFFY J.·25 Mar 1936·Supreme Court of Victoria

Factories and ShopsCarter — Driver of motor truck — Determination of wages board — Effect on words of statute — Factories and Shops Act 1928 (No. 3677), sec. 133.

HEADING v. McCUBBINVLR 159

Mann C.J., MacFarlan J.·7 Apr 1936·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).

CLUGSTON v. MONTAGUEVLR 172

MANN C.J.·1 Apr 1936·Supreme Court of Victoria

Local GovernmentElections — Petition for application thereto of Parliamentary election provisions as to voting by post — Scope and operation of petition — Order in Council laid before Parliament without disallowance — "Regulation" — Local Government Act 1928 (No. 3720), sec. 148(1) (4).

Act repealing and re-enacting provisions of former ActIntermediate legislative steps between two Acts — References in another Act or document to repealed provisions — "Contrary intention" — Electoral Act 1910 (No. 2288) — The Constitution Act Amendment Act 1928 (No. 3660) — Acts Interpretation Act 1928 (No. 3630), sec. 6.

WATSFORD v. CHIEF INSPECTOR OF FACTORIESVLR 185

Mann C.J., MacFarlan J. & Lowe J.·4 May 1936·Supreme Court of Victoria

Factories and shopsDetermination of wages board — Hours of work — Overtime — Five day week — Factories and Shops Act 1928 (No. 3677), sec. 145.

R. v. CORNELIUSVLR 189

Mann C.J.·16 Apr 1936·Supreme Court of Victoria

EvidenceConfession — Whether involuntary — Objection to admissibility — Conduct of trial — Reference to depositions — Evidence Act 1928 (No. 3674), sec. 141.

HEADING v. BLACKVLR 197

MANN C.J.·8 Apr 1936·Supreme Court of Victoria

LicensingDisposal — Meal permit — Liquor supplied to person ordering meal, before meal placed before him — Licensing Act 1928 [No. 3717], sec. 43 (2).

CLEMENTS v. COLLEYVLR 200

Mann C.J. MacFarlan J., Martin J.·8 May 1936·Supreme Court of Victoria

Bill of SaleSituation of property comprised therein — Consideration — Collateral agreement — Instruments Act 1928 (No. 3706), sec. 30 (2).

THE KING v. THE FIBROUS PLASTERERS TRADE TRIBUNALVLR 206

Mann C.J., MacFarlan J.·7 Apr 1936·Supreme Court of Victoria

Factories and shopsDetermination of wages board — Proceedings for contravention thereof — Relationship of employer and employee denied — Act when committed not offence — Proceedings commenced before Trade Tribunal constituted — Transfer of proceedings thereto — Retrospectivity — Factories and Shops Act 1934 (No. 4275), sec. 40.

HOPKINS v. HOPKINSVLR 218

LOWE J.·28 Apr 1936·Supreme Court of Victoria

DivorceDesertion — Just cause or excuse — Petitioner's adultery unknown to respondent — Marriage Act 1928 (No. 3726), sec. 75 (a).

IN RE WILLIAMSVLR 223

Mann C.J., MacFarlan·22 Apr 1936·Supreme Court of Victoria

Conflict of lawsIntestacy — Next of kin — Retrospective declaration in England as to legitimacy — Domicil of parents in England — Legitimacy Act 1926 (16 & 17 Geo. 5, c. 60).

NICHOLSON v. McDONALDVLR 233

GAVAN DUFFY J.·19 May 1936·Supreme Court of Victoria

PracticeAttachment of debts — Decree nisi of nullity of marriage — Costs — Order for payment to Prothonotary for petitioner until decree absolute — Attachment of debt due to respondent — Rules of the Supreme Court 1916, Order XLV., r. 1.

IN RE THE PRODUCERS REAL ESTATE AND FINANCE CO. LTD.VLR 235

MANN C.J.·5 May 1936·Supreme Court of Victoria

CompanyWinding up — "Just and equitable" — Companies Act 1928 [No. 3659], secs. 137, 138 (iii.) — Companies (Special Investigations) Act 1935 [No. 4293], sec. 6.

WINSLOW v. WILSONVLR 247

Mann C.J., MacFrlan J., Lowe J.·11 May 1936·Supreme Court of Victoria

IndemnityWrongful act done at request of another — Facts known to both parties — Act believed to be lawful — Injury to third party — Right of person doing act to indemnity.

FITCHETT v. FITCHETTVLR 250

MARTIN J.·1 June 1936·Supreme Court of Victoria

Husband and wifeMarriage settlement — Settlor divorced on ground of desertion — Reconveyance of settled property to settlor — Marriage Act 1928 (No. 3726), sec. 106.

IN RE ANDREWSVLR 253

Mann C.J., MacFarlan J., Lowe J.·18 May 1936·Supreme Court of Victoria

WillConstruction — Name of beneficiary left blank — Executor, whether taking virtute officii or beneficially — Admission of extrinsic evidence — Intestacy — Administration and Probate Act 1928 (No. 3632), sec. 48.

BAILEY v. BAILEYVLR 264

GAVAN DUFFY J.·13 May 1936·Supreme Court of Victoria

MaintenanceEnforcement of order — Means and ability to pay — Reasonable effort — Onus of proof — Summons to debtor — Proof of service of order — Imprisonment of Fraudulent Debtors Act 1928 (No. 3700), sec. 22 — Maintenance and Alimony (Imprisonment) Act 1935 (No. 4314), sec. 7.

IN RE EDMENTSVLR 272

GAVAN DUFFY J.·25 May 1936·Supreme Court of Victoria

Administration and probateExecutor's Commission — Trustee company carrying on testator's business — Whether commission chargeable on gross receipts, gross profits or net profits — Trustee Companies Act 1928 (No. 3793), sec. 17.

LOFTUS v. WOODWORTHVLR 279

MacFARLAN J.·29 July 1936·Supreme Court of Victoria

Police OffencesRogue and vagabond — Indecent exposure — Whether information bad for duplicity — Evidence admissible — Police Offences Act 1928 (No. 3749), sec. 72.

KIRWAN v. LONGVLR 283

GAVAN DUFFY J.·5 Aug 1936·Supreme Court of Victoria

LicensingLodgers' register book — Collection of leaves enclosed in two cardboard covers and held together by two metal rings — Licensing Act 1928 (No. 3717), sec. 53.

THE KING v. FOSTERVLR 286

GAVAN DUFFY J.·8 June 1936·Supreme Court of Victoria

County CourtAppeal — Settling case on appeal — Filing affidavit of compliance with rules — Court in which affidavit to be filed — County Court Rules 1930, Order XXXIII r. 2.

T. v. T.VLR 293

GAVAN DUFFY J.·25 May 1936·Supreme Court of Victoria

DivorceOrder for permanent alimony — Application for discharge — Inequitable that payments should continue — Discharge by agreement inter partes — Marriage (Divorce) Act 1933 (No. 4210), sec. 5 (2).

LAMBERTON v. COPPINGVLR 300

GAVAN DUFFY J.·5 Aug 1936·Supreme Court of Victoria

Local governmentBy-law — Wilful breach — Carrying on quarrying operations for the removal of clay — Consent of the council — Employee in quarry excavating clay for employer.

KNIGHT v. WALKERVLR 307

MARTIN J.·20 July 1936·Supreme Court of Victoria

Transport regulationCommercial goods vehicle — Definition — "Motor car. . . used . . . in the course of trade" — Isolated use, not for hire or reward, of private car to carry goods — Transport Regulation Act 1933 (No. 4198), sec. 5.

BRADBURY v. SHIRE OF SWAN HILLVLR 313

Mann C.J., MacFarlan, J., Lowe J.·26 Aug 1936·Supreme Court of Victoria

Local GovernmentBy-law — Validity — Power to regulate and restrain — Prohibition unless with approval of council.

IN RE RUSSELLVLR 324

MANN, C.J.·4 Sept 1936·Supreme Court of Victoria

WillConstruction — Gift over after life interest — "Surviving sons and daughters."

BON MARCH PTY. LTD. v. HOYTS THEATRES LTD.VLR 330

LOWE, J.·26 Aug 1936·Supreme Court of Victoria

Landlord and tenantStatutory reduction of rent — Sub-tenancy created by sub-tenant holding over — Sub-tenancy for less than one year — Whether sufficient to restore rent payable to head lessor — Landlord and Tenant (Rent Reduction) Act 1931 (No. 3990), sec. 8 — Landlord and Tenant (Rent Reduction) Amendment Act 1935 (No. 4348), sec. 2.

CRESCENT SALES PTY. LTD. v. BRITISH PRODUCTS PTY. LTD.VLR 336

MacFarlan, J., Lowe J., Gavan Duffy, J.·14 Aug 1936·Supreme Court of Victoria

SlanderInjunction — Jurisdiction to grant injunction — Form of injunction.

LINTON v. LINTONVLR 339

MANN C.J.·20 Aug 1936·Supreme Court of Victoria

DivorceOrder for permanent alimony — Settlement securing payment — Death of former husband — Power of Court to vary order — Marriage Act 1928 (No. 3726), sec. 95 — Marriage (Divorce) Act 1933 (No. 4210), sec. 5 (2) (a).

MARKS v. FORESTS COMMISSIONVLR 344

LOWE J.·9 Sept 1936·Supreme Court of Victoria

CrownForests Commission — Negligence of employee in course of employment — Action against Commission and employee — Whether competent — Forests Act 1928 (No. 3685), Fourth Schedule, Part C., cl. 8.

IN RE PEARSONVLR 355

MANN C.J.·7 Oct 1936·Supreme Court of Victoria

Administration and probateWill — Widow left without sufficient means of support — Application for provision out of testator's estate — Husband and wife living apart under separation deed — Covenant by wife not to make application — Discretion of Court — Administration and Probate Act 1928 (No. 3632), secs. 139, 143, 144 (1).

IN RE NOLANVLR 360

MANN C.J.·19 Oct 1936·Supreme Court of Victoria

Administration and ProbatePractice — Executor — Application for leave to pass accounts — Managing clerk of executor's solicitor acting as solicitor for beneficiaries — Costs.

IN RE FISHERVLR 363

MANN C.J.·19 Oct 1936·Supreme Court of Victoria

Administration and probateCaveat tendered after grant by Court but before issue — Registrar to reject — Procedure on failure to reject — Administration and Probate Act 1928 (No. 3632), sec. 52.

IN RE McKAYVLR 365

MANN C.J.·9 Oct 1936·Supreme Court of Victoria

Barrister and SolicitorArticles of clerkship — Dispensation with full term of articles — Rules of the Council of Legal Education 1932-36.

THE COMMISSIONERS OF THE STATE SAVINGS BANK OF VICTORIA v. SHIRE OF MULGRAVEVLR 367

MANN C.J.·8 Oct 1936·Supreme Court of Victoria

PracticePleading — Duty imposed by Local Government Act 1928 — Particulars of sections relied on.