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[1942] VLR(51 results)

Cases reported in this volume of the Victorian Reports

DAY v. GLENNONVLR 1

GAVAN DUFFY, J.·21 July 1941·Supreme Court of Victoria

LicensingDisposal — Agent carrying on business pending probate — Charge of unlawful disposal of liquor — Whether agent subject to provisions facilitating proof — Licensing Act 1928 (No. 3717), secs. 119 (1) (a), 120, 178, 182.

IN RE YOUNGVLR 4

MARTIN J.·3 Oct 1941·Supreme Court of Victoria

Administration and probateEstate fully administered — Several beneficiaries entitled to residue in remainder — Whether any interest in individual assets forming part of estate — Mortgages on real estate — Whether movables.

IN RE JAMESVLR 12

GAVAN DUFFY J.·15 Sept 1941·Supreme Court of Victoria

WillConstruction — Conflict of laws — Legitimacy — Person domiciled in England — Legitimated by English law after death of father — Father domiciled in England prior to death — Legitimacy not recognised in Victoria — Legitimacy Act 1926 (16 & 17 Geo. V., c. 60).

CROMPTON v. McINTOSHVLR 16

GAVAN DUFFY J.·19 Sept 1941·Supreme Court of Victoria

JusticesChildren's Court — Jurisdiction — Defendant under seventeen when offence committed and information laid but over that age when brought before Court of Petty Sessions — Children's Court Act 1928 (No. 3653), secs. 13, 15.

DAVIES v. DAVIESVLR 19

MANN C.J.·2 Oct 1941·Supreme Court of Victoria

DivorceCondonation — Repeated act of adultery — Conduct necessary to revive condoned offence.

IN RE BUSSTVLR 21

FULL COURT (Mann C.J., Lowe and Gavan Duffy JJ.).·10 Oct 1941·Supreme Court of Victoria

TrustsTenant for life and remainderman — Trust for conversion — Power to retain investments — Shares in no liability mining companies retained — Dividends received from retained shares — Whether income or corpus.

HARRISS v. MacPHERSONVLR 25

O’BRYAN J.·15 Oct 1941·Supreme Court of Victoria

Transport regulationMotor car carrying goods for hire or reward on Sunday — Load composed partly of perishable articles of human food and partly of other goods — Transport Regulation Act 1933 (No. 4198), sec. 40.(1), (2) — Factories and Shops Act 1928 (No. 3677), sec. 130 (1) (b).

WILBY v. GILDERVLR 28

MARTIN J.·5 Dec 1941·Supreme Court of Victoria

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

A.-G. v. SHIRE OF DANDENONGVLR 33

GAVAN DUFFY J.·28 Oct 1941·Supreme Court of Victoria

Local GovernmentLand granted to municipality as site for public buildings — Provision against alienation — Shire hall erected on land — Purported lease of use of hall for motion pictures for profit — Lease in substance a licence — Power of municipality to grant such a lease or licence — Land Act 1928 (No. 3709), sec. 18 — Local Government Act 1928 (No. 3720), sec. 236.

KEIGHERY v. MILLARVLR 43

FULL COURT (Mann C.J., MacFarlan and Lowe JJ.).·30 Oct 1941·Supreme Court of Victoria

Money had and receivedEvidence — Estate agency carried on under firm name — Defendant registered as firm under Business Names Act — Defendant also licensed as real estate agent — Defendant receiving plaintiff's money in course of firm's business — Whether receipt as principal or agent — Effect of defendant's statements in official documents.

IN RE WEIGALL & DAWES’ LEASEVLR 49

O’BRYAN J.·5 Nov 1941·Supreme Court of Victoria

Landlord and tenantLease for three years — Tenant covenanting not to cease to occupy premises for five years while practising as a medical practitioner in neighbourhood — Tenant continuing to so practise and to occupy premises after the expiration of three years — Nature of tenancy — Whether tenancy from year to year — Whether notice to quit on expiry of five years necessary.

WELLS v. MITCHELLVLR 55

FULL COURT (Mann C.J., Lowe and Gavan Duffy JJ.).·22 Oct 1941·Supreme Court of Victoria

Administration and probateAdministration of estate — Two hotels both subject to same mortgage debt — First hotel devised subject to payment of mortgage moneys — Second hotel part of residue — Specific devise of other property free from payment of any mortgages thereon — Whether first hotel charged with payment of the whole of the mortgage moneys thereon — Administration and Probate Act 1928 (No. 3632), sec. 35.

CURWOOD v. R. F. WILLIAMS PTY. LTD.VLR 61

FULL COURT (Mann C.J., Lowe and Gavan Duffy J.J.).·24 Oct 1941·Supreme Court of Victoria

Workers' CompensationInjury to worker — Loss of "use" of thumb — Meaning of "use" — Workers' Compensation Act 1928 (No. 3806), Fourth Schedule — Workers' Compensation Act 1935 (No. 4360), First Schedule.

LEVERETT v. VINESVLR 63

MARTIN J.·31 Oct 1941·Supreme Court of Victoria

County CourtAction for negligence — Nominal defendant — Summons disclosing fact of insurance — Notice requiring trial by jury — No power in County Court to dispense with trial by jury — Application to transfer action to Supreme Court — County Court Act 1928 (No. 3663), secs. 61, 67 — Motor Car (Third-Party Insurance) Act 1939 (No. 4688), sec. 13.

STIMAC v. NICOLVLR 66

FULL COURT (Mann C.J., Gavan Duffy and O’Bryan JJ.).·8 Dec 1941·Supreme Court of Victoria

EstoppelFalse imprisonment — Arrest for drunkenness — Conviction — Whether conviction bar to action for false imprisonment.

MISEL v. TEESEVLR 69

FULL COURT (Mann C.J., Gavan Duffy and O’Bryan JJ.).·15 Dec 1941·Supreme Court of Victoria

Police offencesLawful means of support — Absence of — Power of constable to arrest — Reasonable cause to believe accused has no lawful means of support — Police Offences Act 1928 (No. 3749), sec. 70.

McNIEL v. McNIELVLR 74

FULL COURT (Mann C.J., Gavan Duffy and O’Bryan JJ.).·15 Dec 1941·Supreme Court of Victoria

DivorcePetition on grounds of adultery and cruelty — Woman named in petition intervening — Questions for jury — Divorce Rules, rule 49.

IN RE AUSTRAL DEVELOPMENT PTY. LTD.VLR 81

LOWE J.·5 Feb 1942·Supreme Court of Victoria

CompanyPractice — Reduction of capital — Consent of creditors — Settling list of creditors — Dispensing with — Companies Act 1938 (No. 4602), sec. 56.

R. v. LEISHMANVLR 83

FULL COURT (Lowe, Gavan Duffy and O’Bryan JJ.).·4 Dec 1941·Supreme Court of Victoria

Criminal lawSubstantial miscarriage of justice — Forgery — Intent to defraud — Public document — Marriage certificate — Marriage Act 1928 (No. 3726), sec. 26.

R. v. READY AND MANNINGVLR 85

FULL COURT (Mann C.J., Gavan Duffy and Martin JJ.).·17 Feb 1942·Supreme Court of Victoria

Criminal lawAccessory before the fact — Absence of direct communication with principal — Accessory after the fact — No positive assistance to principal offender — Whether an accomplice — Whether corroboration of evidence required — Direction as to corroboration — Corroboration of evidence of accomplice — Meaning of accomplice — Re-examination of witness.

SPICERS & DETMOLD LTD. v. A.A.C.P. CO.VLR 97

MANN C.J.·19 Feb 1942·Supreme Court of Victoria

PracticePleading — Statement of claim — Pleading therein of waiver, estoppel and election to affirm contract — Whether permissible — Rules of Supreme Court 1938, Order XIX., rule 14.

McINTOSH v. CITY OF BENDIGOVLR 102

FULL COURT (Mann C.J., Macfarlan and Gavan Duffy JJ.).·27 Mar 1942·Supreme Court of Victoria

Local GovernmentLicensing — Licensed premises — Valuation — Apportionment of licence fee — Whether proportion of licence fee falling on owner deductible in computing net annual value of premises — Licensing Act 1928 (No. 3717), sec. 19 (3) — Local Government Act 1928 (No. 3720), sec. 252.

CITY OF SANDRINGHAM v. EVANSVLR 113

MANN C.J.·20 Mar 1942·Supreme Court of Victoria

Local governmentStreet-making — Liability of frontager — Adjournments of meetings to consider scheme — Eventual adoption of scheme — Defect in proceedings — Whether cured — Local Government Act 1928 (No. 3720), secs. 577-580.

WILSON v. BEERSVLR 117

GAVAN DUFFY J.·20 Mar 1942·Supreme Court of Victoria

Factories and shopsWages board — Price or rate determined — Date not within fourteen days of such determination — Meaning of "determination" — Factories and Shops Act 1928 (No. 3677), sec. 171.

IN RE BURROWSVLR 121

LOWE J.·16 Apr 1942·Supreme Court of Victoria

Administration and probateSummons to executor to prove will — Power of Court on return of summons — Power to grant administration with the will annexed — Formal renunciation of probate by executor not filed in Court — Administration and Probate Act 1928 (No. 3632), sec. 11.

R. v. WOOLLEYVLR 123

FULL COURT (Mann C.J., Macfarlan and O’Bryan JJ.).·17 Apr 1942·Supreme Court of Victoria

Criminal lawEvidence — Character of accused — Cross-examination as to — Imputations against character of prosecution witness — Crimes Act 1928 (No. 3664), sec. 432.

IN RE FINNVLR 125

LOWE J.·10 Apr 1942·Supreme Court of Victoria

Administration, and ProbateCaveat — Interest of caveator — Bankruptcy of caveator — Security for costs — Bankruptcy Act 1924-1933 (No. 37 of 1924-No. 66 of 1933), secs. 60, 91 — Administration and Probate Act 1928 (No. 3632), sec. 52.

IN RE STURTVLR 129

GAVAN DUFFY J.·20 Apr 1942·Supreme Court of Victoria

Administration and probateSummons to executor to prove will — Return of summons — Grant of administration with will annexed — Whether made by Court or Registrar of Probates — Administration and Probate Act 1928 (No. 3632), sec. 11.

BIRD v. COLONIAL SPARK PLUGS PTY. LTD.VLR 130

LOWE J.·22 Apr 1942·Supreme Court of Victoria

National securityConsent to prosecution — Solicitor-General Act 1916 (No. 28 of 1916), sec. 3 — National Security Act 1939-1940 (No. 15 of 1939 — No. 44 of 1940) — National Security (Supplementary) Regulations.

JAMES v. GLENNVLR 132

FULL COURT (Mann C.J., Macfarlan and Lowe JJ.).·6 May 1942·Supreme Court of Victoria

PracticeInterrogatories — Action for negligence under Wrongs Act, Part III. — Road collision — Facts previously investigated — Plaintiffs unable to obtain witnesses — Whether defendant bound to answer interrogatories as to his version of collision — Rules of Supreme Court 1938, Order XXXI, rule 11.

IN RE PENDERVLR 135

O’BRYAN J.·14 May 1942·Supreme Court of Victoria

Administration and probateAdministration bond — Dispensing with surety — Interest of infants — Dispensation refused — Limitation of amount of surety.

IN RE ROBERTSONVLR 137

MacFARLAN J.·11 Dec 1941·Supreme Court of Victoria

Administration and probateWill naming particular individual as executor — Mistake of testator as to name — Intention to appoint some other person executor — Extrinsic evidence of intention inadmissible — Wills Act 1928 (No. 3803), sec. 7.

IN RE STRAW PRODUCTS PTY. LTD.VLR 139

LOWE, J.·27 Apr 1942·Supreme Court of Victoria

CompanyProprietary company — Winding up — Conduct of majority shareholders — Whether just and equitable to order winding up — Companies Act 1938 (No. 4602), sec. 166 (1) (f).

IN RE HOODVLR 144

O’BRYAN J.·13 May 1942·Supreme Court of Victoria

Administration and ProbateFamily maintenance — Testamentary provision therefor — Application by widow for provision out of testator's estate — Intestacy as to part of estate — Court to have regard to the whole estate in considering application and fixing amount of any provision made — Order made to be limited to assets disposed of by will — Administration and Probate Act 1928 (No. 3632), Part V. — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483), secs. 3, 7, Schedule.

BRINDISI v. McKINNONVLR 148

O’BRYAN J.·25 May 1942·Supreme Court of Victoria

National securityLiquor control — Closure order — Whether properly made — Reasonable cause for belief — Proof of — Review of order — Costs of application to review — Commonwealth National Security (Supplementary) Regulations — Liquor Control Order (Victoria), cl. 5 (1), (5).

FLAKEMORE v. FLAKEMOREVLR 156

FULL COURT (Mann C.J., Macfarlan and Gavan Duffy JJ.).·4 May 1942·Supreme Court of Victoria

DivorceJurisdiction — Domicil in Victoria — Petition in Victoria for dissolution of marriage — Previous proceedings in Tasmania — Tasmanian proceedings still pending — Whether Victorian Court has jurisdiction — Whether jurisdiction should be exercised.

IN RE REYNOLDSVLR 158

O’BRYAN J.·26 May 1942·Supreme Court of Victoria

TrustsPostponement of conversion — Trustee carrying on business — Settled legacies not set up — Income from unconverted property to be paid as if it were income from investments of the proceeds of conversion — Business in some years carried on at loss — To what income tenants for life entitled — Losses to be deducted from subsequent profits.

GIBB v. SIMPSONVLR 171

MARTIN J.·19 June 1942·Supreme Court of Victoria

PracticeMode of trial — With or without jury — Negligence — Action for — Insurance of motor cars — Car involved not identified — Nominal defendant — Description of in proceedings — Duty of counsel at trial — Motor Car (Third Party Insurance) Act 1939 (No. 4688), sec. 13 — Rules of Supreme Court 1938, Order XXXVI., r. 6.

ROWARTH v. GRACEVLR 173

MARTIN J.·29 June 1942·Supreme Court of Victoria

Police Offences"Brothel" — Meaning of — Police Offences Act 1928 (No. 3749), sec. 80.

IN RE WILSONVLR 177

O’BRYAN J.·8 June 1942·Supreme Court of Victoria

Executors and administratorsExecutor empowered to carry on business of testator — Trade creditor of executor — Not pursuing legal remedy against executor — Whether entitled to order for administration of estate — Insolvent estate — Transfer of proceedings to Court of Bankruptcy — Bankruptcy Act (Commonwealth) 1924-1933, sec. 155 (3).

IN RE SLOANVLR 187

MARTIN, J.·21 July 1942·Supreme Court of Victoria

WillCompany — Bequest of shares in proprietary company — Declaration of dividend after death of testator in respect of period commencing before death — Whether carried by gift of shares or part of corpus — Apportionment — Supreme Court Act 1928 (No. 3783), sec. 73.

SUTTON v. LOCKEVLR 191

FULL COURT (Mann C.J., Gavan Duffy and Martin JJ.).·5 Aug 1942·Supreme Court of Victoria

Husband and wifeDeed of separation — Construction — Allowance payable to wife for life — Deed to terminate on marriage being "dissolved" — Whether allowance payable after husband's death.

IN RE DOHERTY AND RUDIN’S LEASEVLR 194

O’BRYAN J.·10 Aug 1942·Supreme Court of Victoria

Landlord and TenantLiability of tenant to pay "pan rates" — Whether tenant liable to pay sewerage rates — Sewerage Districts Act 1928 (No. 3772), secs. 83, 112 — Health Act 1928 (No. 3697), sec. 52.

IN RE HEARDVLR 199

MANN, C.J.·15 July 1942·Supreme Court of Victoria

WillConstruction — Gift to "issue".

HEALY v. LAW BOOK CO.VLR 203

FULL COURT (Mann C.J., Gavan Dutty and Martin JJ.).·4 Aug 1942·Supreme Court of Victoria

Master and servantAnnual hiring — Contract providing for termination upon six months' notice — Whether notice must expire at end of a yearly period.

SCOTT v. PUBLIC TRUSTEE OF VICTORIAVLR 206

FULL COURT (Mann C.J., Gavan Duffy and Martin JJ.).·11 Aug 1942·Supreme Court of Victoria

PracticeSpecially indorsed writ — Summons for final judgment — Cause of action — Verification by affidavit — Contents of affidavit — Rules of Supreme Court 1938, Order XIV., rule 1.

IN RE GREENVLR 210

MANN C.J.·20 Aug 1942·Supreme Court of Victoria

WillConstruction — Trust to apply moneys "for such charitable purposes and bequests to such of my relations as my trustee may think proper" — Validity — Meaning.

IN RE JOHN DANKS’ SETTLEMENTVLR 215

MANN C.J.·25 Aug 1942·Supreme Court of Victoria

WillCharity — Trust for benefit of employees — Validity — Severability of provisions — Property Law Act 1928 (No. 3754), sec. 131.

MAIZE PRODUCTS PTY. LTD. v. CITY OF FOOTSCRAYVLR 218

MacFARLAN J.·29 July 1942·Supreme Court of Victoria

Local GovernmentBy-law — Power to suppress nuisances — By-law prohibiting use of fuel in a furnace unless escape of any dust, grit or ash therefrom made impossible — Validity — Local Government Act 1928 (No. 3720), sec. 197 (1)(x).

IN RE STRAW PRODUCTS PTY. LTD.VLR 222

FULL COURT (Mann C.J., Gavan Duffy and Martin JJ.).·15 Sept 1942·Supreme Court of Victoria

CompanyProprietary company — Winding up — Conduct of majority shareholders — Whether just and equitable to order winding up — Companies Act 1938 (No. 4602), sec. 166 (1)(f).

R. v. HANLEYVLR 239

MacFARLAN J.·3 Sept 1942·Supreme Court of Victoria

Criminal lawCommittal for trial of accused apparently over age of seventeen years — Under seventeen at time of offence — Presentment by Attorney-General — Jurisdiction of Supreme Court to deal with accused — Children's Court Act 1928 (No. 3653) — Crimes Act 1928 (No. 3664), sec. 387.