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[1937] VLR(65 results)

Cases reported in this volume of the Victorian Reports

IN RE MacMULLENVLR 1

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

WillConstruction — "Dic unmarried and without lawfully begotten children" — "And" read as "or".

DANGERFIELD v. WALLACEVLR 9

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

Factories and shopsHairdresser's shop — Alcove enclosed by three walls, the fourth side having, instead of a wall, a screen with an opening covered by a curtain — Building controlled by municipal council and used as public baths — Occupier — Person carrying on business of hairdresser therein for reward with permission of council — Closing of shop — Factories and Shops Act 1928 (No. 3677), secs. 3, 87, 229 (k).

IN RE WHITFIELDVLR 17

MANN C.J.·30 Oct 1936·Supreme Court of Victoria

Administration and probateWill — Widow left without sufficient means of support — Application for provision out of testator's estate — Distressed circumstances of widow — Matters to be considered by Court — Costs of unsuccessful application — Administration and Probate Act 1928 (No. 3632), sec. 139.

BELL v. DRAKEVLR 21

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

Motor carWeight — "Allow . . . to be weighed on a portable mechanical device" — Obligation on driver to take reasonable and necessary steps to enable weighing to be carried out — Driving car onto device — Motor Car Act 1930 (No. 3901), sec. 27.

CLAPCOTT v. CLAPCOTTVLR 26

GAVAN DUFFY J.·30 Sept 1936·Supreme Court of Victoria

DivorceDesertion — Petitioner justified in leaving matrimonial home — Offer to return — Refusal — Commencement of desertion.

SEMPLE v. CITY OF GEELONGVLR 28

MANN C.J., LOWE J., GAVAN DUFFY J.·12 Nov 1936·Supreme Court of Victoria

Unemployment reliefWork and labour — In return for sustenance and pursuant to demand — Work in excess of statutory obligation required — Claim on common count — Unemployment Relief (Administration) Act 1932 (No. 4079), sec. 8.

ALLCARS PTY. LTD. v. TWEEDLEVLR 35

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

ContractHire purchase agreement — Offer to sign "usual hiring agreement" of offeree or its nominee — Uncertainty.

IN RE HAPYTOZ PTY. LTD.VLR 40

MARTIN J.·4 Dec 1936·Supreme Court of Victoria

CompanyGuarantee — Execution by managing director — Ratification by shareholders — Directors' power to delegate to managing director — Affixing of seal — Attestation by "officer" of company — Memorandum satisfying Statute of Frauds.

THE KING v. CITY OF ST. KILDAVLR 48

MANN C.J.·10 Nov 1936·Supreme Court of Victoria

Local governmentBuilding by-law — Mandamus to council — Building to comprise 228 residential flats — Use for purposes of business — Plans complying with building by-law — Permit to build refused — Bond fide belief by council on reasonable grounds that erection of building would contravene residential areas by-law — Refusal of mandamus — Local Government Act 1928 (No. 3720), sec. 198.

OLIVE v. MORGANVLR 54

GAVAN DUFFY J.·26 Nov 1936·Supreme Court of Victoria

Police offencesBetting — "Place" — "User" — Police Offences Act 1928 (No. 3749), secs. 87, 97.

TAYLOR v. SANDERSVLR 62

MANN C.J.·26 Nov 1936·Supreme Court of Victoria

IndemnityCompany entitled to — Dissolution of company — Effect on its liabilities — Rights of assignee of right of indemnity — Transfer of Land Act 1928 (No. 3791), sec. 127 — Companies Act 1928. (No. 3659), sec. 196.

J. C. WILLIAMSON LTD. v. METRO-GOLDWYN-MAYER THEATRES LTD.VLR 67

MANN C.J. LOWE J.·27 Nov 1936·Supreme Court of Victoria

ContractGrant of right to produce and perform musical play — Exception of motion picture film rights — Whether "sound pictures" within exception.

IN RE LEVIENVLR 80

GAVAN DUFFY J.·4 Dec 1936·Supreme Court of Victoria

WillConstruction — Tenant for life and remainderman — Hazardous investments — Reversionary property — Conversion — Discretionary power to sell or postpone sale — Apportionment — Rule in Howe v. Earl of Dartmouth ([1802] 7 Ves. 137a).

BROADHURST v. MERRETTVLR 91

MANN C.J.·24 Feb 1937·Supreme Court of Victoria

Transport regulationLimitation of hours of duty for drivers of motor cars used for the carriage of goods — "Passenger" — Owner of vehicle carried thereon while employee driving — Transport Regulation Act 1933 (No. 4198), sec. 39.

THE COMMISSIONERS OF THE STATE SAVINGS BANK OF VICTORIA v. SHIRE OF MULGRAVEVLR 94

MANN C.J.·25 Feb 1937·Supreme Court of Victoria

Local governmentWater — Charge — Council accepting control and management of waterworks — Whether entitled to withhold supply of water to rated property until payment of moneys owing for excess water supplied to previous occupier — Local Government Act 1928 [No. 3720], secs. 197 (1) (iv), 385 (1), 651 (2).

CITY OF CHELSEA v. VISBORDVLR 100

LOWE J.·24 Feb 1937·Supreme Court of Victoria

Local governmentStreet construction — Land fronting, adjoining or abutting on street intended to be formed — Sale of land prior to sending out of notices of scheme — Notice of change of ownership given after service of notice of scheme but before its adoption — Whether vendor liable to contribute to cost of construction — Local Government Act 1928 [No. 3720], secs. 347, 350, 574-580, 833.

MYER v. THE COMMISSIONER OF TAXESVLR 106

MARTIN J.·16 Dec 1936·Supreme Court of Victoria

Administration and ProbateDuties on deceased persons' estates — Shares in proprietary company — Restrictions on transfer — Powers of governing director — Valuation of shares — Administration and Probate Act 1928 (No. 3632), sec. 152.

DALEY v. THE LONGWARRY AND DISTRICT DAIRYMEN’S CO-OPERATIVE ASSOCIATION LTD.VLR 126

MANN C.J. MacFARLAN J. and MARTIN J.·3 Mar 1937·Supreme Court of Victoria

Milk and dairy supervisionPrices to suppliers of milk — Milk received at a factory — Receipt for manufacturing purposes — "Surplus milk" — Milk and Dairy Supervision Act 1928 (No. 3736), sec. 18 — Dairy Produce Act 1935 (No. 4349), sec. 2.

IN RE ANDERSONVLR 130

MARTIN J.·24 Mar 1937·Supreme Court of Victoria

Administration and ProbateDuties on deceased persons' estates — Joint property — Acquired by purchase — Beneficial interest passing by survivorship — Liability to duty — Administration and Probate Act 1928 (No. 3632), sec. 174.

O’BRIEN v. THE HERALD AND WEEKLY TIMES LIMITEDVLR 135

GAVAN DUFFY J.·12 Mar 1937·Supreme Court of Victoria

County CourtRemission to — Infant plaintiff — No visible means of paying defendant's costs — Whether plaintiff's or next friend's means to be considered — Circumstances rendering it advisable that action be tried in Supreme Court — County Court Act 1928 (No. 3663), sec. 58.

KLINKER KNITTING MILLS PTY. LTD. v. L’UNION FIRE ACCIDENT AND GENERAL INSURANCE CO. LTD.VLR 142

LOWE J.·5 Apr 1937·Supreme Court of Victoria

PracticeStay of proceedings pending appeal — Discretion as to granting — Rules of the Supreme Court 1916, Order LVIII, r. 16.

BELL v. BELLVLR 144

MacFARLAN J.·22 Mar 1937·Supreme Court of Victoria

DivorceFrequent convictions — "Sentenced in the aggregate to imprisonment for three years" — Sentence during Governor's pleasure — Sentence prior to marriage — Marriage Act 1928 (No. 3726), sec. 75 (c).

IN RE X.VLR 147

MANN C.J.·19 Mar 1937·Supreme Court of Victoria

LunacyDetention in hospital for insane — Discharge — Temporary nature of insanity — Probability of recurrence — Likelihood of danger — Patient a chronic alcoholic — Lunacy Act 1928 (No. 3721), sec. 103.

R. v. DAVIESVLR 150

MANN C.J.·7 Apr 1937·Supreme Court of Victoria

Criminal LawConviction — Setting aside — New evidence — As to credit only — Order on appeal — Power of Full Court to set aside — Reference to Full Court on petition for mercy — Form of petition — Crimes Act 1928 (No. 3664), sec. 610.

BROADHURST v. COCKROFTVLR 159

LOWE J.·7 Apr 1937·Supreme Court of Victoria

Transport RegulationVehicle operated otherwise than in accordance with the licence relating thereto — Driver's want of knowledge of the terms of the licence — Transport Regulation Act 1933 (No. 4198), sec. 46.

BERGLUND v. GRAHAMVLR 162

MANN C.J.·21 Apr 1937·Supreme Court of Victoria

Police offencesOffensive behaviour — At public meeting — Meeting of municipal council — Whether a "public meeting" — Local Government Act 1928 (No. 3720), sec. 183 (4) — Police Offences Act 1928 (No. 3749), sec. 32.

FOSBERY v. BURDEKINVLR 165

GAVAN DUFFY, J.·26 Apr 1937·Supreme Court of Victoria

Book debtsAssignment — Unregistered instrument — Moneys received by assignee under — Deed of arrangement under Part XII. of Bankruptcy Act by assignor — Assignee of book debts an assenting creditor — Whether entitled to hold moneys received as assignor against trustee of deed of arrangement — Set-off — Whether assignee entitled to set off money payable by him to trustee against money owing to him by assignor — Instruments Act 1928 (No. 3706), sec. 81 — Bankruptcy Act 1924-1933 (No. 37 of 1924 — No. 66 of 1933), secs. 82, 199.

HENDERSON v. O’CONNELLVLR 171

MANN C.J.·22 Feb 1937·Supreme Court of Victoria

Police offencesWarrant to enter premises and to arrest, search and bring before a justice persons found therein — Attempted search by police without arresting — Whether police acting in execution of duty — Obstruction — Police Offences Act 1928 (No. 3749), secs. 124, 145.

PracticeOrder nisi to review a conviction — Death of party before return — Joinder of personal representative — Jurisdiction to hear — Rules of the Supreme Court 1916, Order XVII., r. 4.

MUNNS v. WATSONVLR 178

LOWE J.·12 Apr 1937·Supreme Court of Victoria

Real PropertyRestrictive covenant — Not to erect any building except a double-fronted house — Double-fronted villa containing two dwellings — Whether erection a breach of covenant.

RENFREW v. BIRMINGHAMVLR 180

GAVAN DUFFY J.·18 May 1937·Supreme Court of Victoria

WillHusband and wife — Agreement by husband, in consideration of wife leaving him residue of her estate should he survive her, to leave his property to named persons — Creation of legal relationship — Wills made in accordance with agreement — Whether any repugnancy between absolute gift in wife's will and husband's promise — Husband surviving wife and making fresh will, not in accordance with agreement, after accepting benefits given, by wife's will — Whether agreement enforceable, after husband's death, for benefit of persons named in it — Instruments Act 1928 (No. 3706), sec. 128.

IN RE Z.VLR 191

MANN C.J.·22 Apr 1937·Supreme Court of Victoria

LunacyJurisdiction of Supreme Court — "Management" of lunatic's estate — Purchase of land as an incident of management — Sanction of Court to purchase — Lunacy Act 1928 (No. 3721), sec. 131.

FELSTEAD v. ECONOMIC CASH BUYING CO. PTY. LTD.VLR 194

MANN C.J. MacFARLAN J. and GAVAN DUFFY J.·19 May 1937·Supreme Court of Victoria

Sale of goodsGoods not in possession of seller at time of sale — Seller subsequently acquiring possession — Re-sale by person who having sold goods "is in possession of the goods" — Receipt of goods in good faith without notice of previous sale — Title to goods — Goods Act 1928 (No. 3694), sec. 30.

BOWES v. CITY OF BRUNSWICKVLR 199

MANN C.J. MacFARLAN J. and GAVAN DUFFY J.·18 May 1937·Supreme Court of Victoria

Local GovernmentMaking streets at cost of frontagers — Road set out on private property — Road formerly formed to satisfaction of council — Reconstruction of road — Liability of frontagers — Local Government Act 1928 (No. 3720), sec. 574.

PracticeCase stated — Setting down for hearing — Reference to Full Court — Rules of Supreme Court 1916, Order XXXIV., rr. 1, 5.

ANDERSON v. COMMISSIONER OF TAXESVLR 204

[Coram LATHAM C.J., RICH, DIXON AND McTIERNAN JJ.]·31 May 1937·In the High Court of Australia

Administration and ProbateDuties on deceased persons' estates — Joint property — Acquired by purchase — Beneficial interest passing by survivorship — Liability to duty — Administration and Probate Act 1928 (No. 3632), sec. 174.

DAVIES v. THE KINGVLR 205

[Coram LATHAM C.J., RICH, DIXON, EVATT AND McTIERNAN JJ.]·4 June 1937·In the High Court of Australia

Criminal LawConviction — Setting aside — New evidence — As to credit only — Mode of identification of accused persons — Direction as to evidence of identification.

IN RE WHITFIELDVLR 207

MacFARLAN J. LOWE J. and GAVAN DUFFY J.·27 May 1937·Supreme Court of Victoria

Administration and probateWill — Widow left without sufficient means of support — Application for provision out of testator's estate — Matters to be considered by Court — Refusal of application — Appellate Court's discretion — Administration and Probate Act 1928 (No. 3632), sec. 139.

THE KING v. NEESONVLR 211

LOWE J.·19 Apr 1937·Supreme Court of Victoria

Local GovernmentProceedings of council — Appointment of shire solicitor — Notice of motion to revoke — Refusal of president to put motion to council meeting — Point of order — Mandamus — Solicitor's retainer — Termination whether amounting to breach of contract — Local Government Act 1928 (No. 3720), Thirteenth Schedule, Part XI., cl. 21.

THOMAS v. DAVIESVLR 217

GAVAN DUFFY J.·26 May 1937·Supreme Court of Victoria

Licensed premisesPermit for supply of liquor during prohibited hours — Extension of permit — Failure to keep door by which access had to dining room unlocked during hours specified in extension — Offence — Consolidating Act changing law — Licensing Act 1928 (No. 3717), secs. 43, 159.

THE KING v. LISTONVLR 222

LOWE J., Mann C.J.·21 May 1937·Supreme Court of Victoria

PracticeDetermination of questions of law before evidence is given — Convenience — Possibility of evidence being put in jeopardy — Rules of the Supreme Court 1916, Order XXXIV., r. 2.

R. v. DAVIESVLR 226

Mann C.J.·11 Mar 1937·Supreme Court of Victoria

Criminal LawEvidence — Conduct of police — Identification — Showing photograph of suspected person to identifying witness — Evidence of informers — Warning to jury — Sufficiency of Judge's charge.

MEYER v. THE MEDICAL BOARD OF VICTORIAVLR 237

LOWE J.·29 June 1937·Supreme Court of Victoria

Medical practitionerRegistration as — Course of study of applicant — Pursued in non-reciprocating foreign country — Whether applicant entitled to registration — Medical Act 1928 (No. 3730), secs. 13, 14.

IN RE KNOTTVLR 244

LOWE J.·25 June 1937·Supreme Court of Victoria

WillTenant for life and remainderman — Contract of Sale — Deficiency on realisation after testator's death — Apportionment of proceeds.

IN RE HUGHESVLR 249

LOWE J.·22 June 1937·Supreme Court of Victoria

WillBequest of "all the money I die possessed of including money in hand or in any bank" — Distributive share in intestate estate coming in after testatrix's death — Whether included in bequest.

HANCOCK v. POWERVLR 252

Mann C.J., MacFarlan J., Gavan Duffy J.·2 Aug 1937·Supreme Court of Victoria

County CourtJury — Remitted action — Plaintiff's right to a jury — County Court Act 1928 (No. 3663), secs. 58, 67, 87 (6).

AMOS v. AMOSVLR 257

GAVAN DUFFY J.·17 June 1937·Supreme Court of Victoria

DivorceDesertion for three years and upwards — Separation agreement after expiration of statutory period — No covenant not to sue — Matrimonial relationship not resumed — Whether agreement a bar to petition — Marriage Act 1928 (No. 3726), sec. 75 (a).

DIX v. LAMBERTVLR 259

LOWE J.·21 July 1937·Supreme Court of Victoria

Road traffic"More than two vehicles travelling side by side in the same direction" — Two lines of stationary motor cars facing in same direction — Third car driven in same direction alongside stationary cars — Road Traffic Act 1935 (No. 4352) — Road Traffic Regulations 1936, reg. 17.

IN RE THORPVLR 262

MANN C.J.·1 June 1937·Supreme Court of Victoria

WillConstruction — Gift to cousins — Gift to "legal representatives of any of such cousins as shall predecease me" — Cousins dead at date of will — Commonwealth estate duty — Whether covered by phrase "probate and legacy duty" — Estate Duty Assessment Act 1914-1928 (No. 22 of 1914 — No. 47 of 1928), sec. 35.

TAYLOR v. O’MALLEYVLR 270

LOWE J.·10 June 1937·Supreme Court of Victoria

Contract of saleLicensed premises — Transfer of licence — Obligation on purchaser to procure transfer on date fixed for possession.

THE KING v. THE GOVERNOR OF THE METROPOLITAN GAOL, COBURGVLR 279

MARTIN J.·30 Aug 1937·Supreme Court of Victoria

Criminal LawPunishment — Detention in reformatory prison — Power of Court of General Sessions in its appellate jurisdiction to order such detention — Habeas corpus — Release of prisoner illegally detained on return of order nisi for habeas corpus — Crimes Act 1928 (No. 3664), secs. 514, 515 — Justices Act 1928 (No. 3708), sec. 137 (7) — Rules of the Supreme Court 1916, Order LIII, r. 46.

R. v. THOMASVLR 283

Mann C.J., MacFarlan, J., Gavan Duffy, J.·27 Aug 1937·Supreme Court of Victoria

Criminal LawBigamy — Mens rea — Honest belief on reasonable grounds former marriage void — Crimes Act 1928 (No. 3664), sec. 61.

SHIRE OF MULGRAVE v. THE COMMISSIONERS OF THE STATE SAVINGS BANK OF VICTORIAVLR 292

[Coram LATHAM C.J., DIXON AND EVATT JJ.]·9 Aug 1937·In the High Court of Australia

Local GovernmentWater — Excess water — Charge — Council accepting control and management of waterworks — Whether entitled to withhold supply of water to rated property until payment of money owing for excess water supplied to previous occupier — Whether such money a charge on property — Local Government Act 1928 (No. 3720), secs. 197 (1)(iv), 385 (1), 651 (2).

EX PARTE MENZIESVLR 293

[Before the JUDGES OF THE SUPREME COURT.] Mann C.J.·5 Aug 1937·Supreme Court of Victoria

Barrister and SolicitorAdmission to practise — Applicant a practitioner of another State — Reciprocity with Victoria — Victorian practitioners admitted conditionally in other State — Conditional order for admission — Rules of the Council of Legal Education of 29th December 1932, rr. 7, 8.

JOHNSON’S TYNE FOUNDRY PTY. LTD. v. ALBA PETROLEUM COMPANY OF AUSTRALIA PTY. LTD.VLR 296

MARTIN J.·24 Aug 1937·Supreme Court of Victoria

Workers' compensationContract by employer for execution of works for principal — Condition — Employer to be "responsible for any claims arising in connection with the works under any statute dealing with the question of the liability of employers in respect to injury sustained by employees" — Accident due to principal's negligence causing injury to employer's workmen — Claims under Workers' Compensation Act against employer — Payment by insurer — Employer's right to indemnity from principal — Workers' Compensation Act 1928 (No. 3806), sec. 16 (2).

IN RE McPHERSONVLR 301

MARTIN J.·20 Aug 1937·Supreme Court of Victoria

Barrister and solicitorArticles of clerkship — Service with the Deputy Crown Solicitor in Victoria for the Commonwealth he not being a barrister and solicitor of the Supreme Court of Victoria — Rules of the Council of Legal Education 1932-1936, r. 23.

IN RE P. BIRD PTY. LTD.VLR 303

LOWE J.·6 Sept 1937·Supreme Court of Victoria

CompanyLiquidation — Secured creditor — Obligation to give up security — Creditor holding legal mortgage of land in which the company has an equitable interest — General lien charging certificates of title to come into possession of creditor — Whether a specific security — Companies Act 1928 (No. 3659), sec. 207 — Insolvency Act 1928 (No. 3705), secs. 194, 195 — Transfer of Land Act 1928 (No. 3791), sec. 179.

ESLER v. NELSONVLR 309

GAVAN DUFFY J.·8 Sept 1937·Supreme Court of Victoria

LicensingDisposal — Meal permit — Extension to 11.30 p.m. for birthday dinner — Liquor supplied to guests, as part of function, at 9 p.m. — Meal not intended to be served until 10.30 p.m. — Licensing Act 1928 [No. 3717], sec. 43.

KROHN v. PALETTE SHOES PTY. LTD.VLR 314

LOWE J.·15 Sept 1937·Supreme Court of Victoria

CompanyLiquidation — Moneys held on trust by the company and not paid over — Interest thereon — At what rate — Right to interest actually received — Proof in winding up for difference between interest actually received and interest charged — Companies Act 1928 (No. 3659), sec. 283.

CAREY v. CAREYVLR 318

GAVAN DUFFY J.·20 Sept 1937·Supreme Court of Victoria

Divorce"Maintenance order" — Order of High Court of England, made after decree absolute, for periodical payments by former husband for maintenance of former wife — Enforcement in Victoria — Maintenance Act 1928 (No. 3722), Part V.

FINLAY v. KENTVLR 322

GAVAN DUFFY J.·15 Sept 1937·Supreme Court of Victoria

Second-hand dealerSunday — "Deal in" second-hand wares — Meaning — Offer to sell — Contract not made — Second-hand Dealers Act 1928 [No. 3767], sec. 19.

BIRRELL v. PURDYVLR 325

MacFARLAN J.·30 Aug 1937·Supreme Court of Victoria

EvidenceInformation alleging defendant a common prostitute — Method of proof.

IN RE SMITHVLR 328

MANN C.J., LOWE J. MARTIN J.·4 Oct 1937·Supreme Court of Victoria

WillConstruction — Life interest — Inalienable personal provision for beneficiary — Payable "into her own hands" — Forfeiture clause — Beneficiary becoming lunatic patient — Whether forfeiture incurred — Lunacy Act 1928 (No. 3721).

COMMISSIONER OF TAXES v. NICHOLASVLR 331

MANN C.J. MacFARLAN J. GAVAN DUFFY J.·1 Sept 1937·Supreme Court of Victoria

Income TaxSpecial tax — Unemployment relief tax — Reserve funds of company representing undivided profits — Issue of bonus shares to full amount of reserve funds — Whether "dividend interest profit or bonus credited paid or distributed" to shareholder — Liability of shareholder to special tax and unemployment relief tax — Income Tax Act 1935 (No. 4309), sec. 2 (1) (g) (ii) — Unemployment Relief Tax (Assessment) Act 1933 (No. 4171), sec. 4.

KOLLMORGEN v. KOLLMORGENVLR 347

MANN C.J. LOWE J. MARTIN J.·5 Oct 1937·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).

HOPKINS v. BUSSELLVLR 352

MacFARLAN J.·18 Aug 1937·Supreme Court of Victoria

Transport RegulationCommercial goods vehicle — Licence to operate solely within twenty-five miles of Melbourne — Vehicle operating otherwise than in accordance with licence — Driver detected within twenty-five mile area while on journey extending outside area — Transport Regulation Act 1933 (No. 4198), secs. 5, 22 (a), 46.

IN RE GRICEVLR 356

MANN C.J., MacFARLAN J. and GAVAN DUFFY J.·29 Sept 1937·Supreme Court of Victoria

Administration and ProbateDuties on deceased persons' estates — "Gift of personal property" — Money — Whether identifiable on donor's death — Expenditure by donor — Dutiability — Administration and Probate Act 1928 (No. 3632), sec. 173.