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[1943] VLR(34 results)

Cases reported in this volume of the Victorian Reports

NEON ELECTRIC SIGNS LTD. v. CALDWELLVLR 1

FULL COURT (Mann C.J., Lowe and Gavan Duffy JJ.).·29 Oct 1942·Supreme Court of Victoria

ContractDischarge — Commercial frustration — Hiring of goods and chattels — Neon signs attached to the freehold — Whether fixtures — Jurisdiction of Court of Petty Sessions — Claim for use and hire of chattels — National Security — Lighting restriction orders — Whether contract terminated or frustrated.

IN RE BIRMACLEY PRODUCTS PTY. LTD.VLR 29

MARTIN J.·5 Oct 1942·Supreme Court of Victoria

CompanyWinding up — Resolution of directors to present petition — Managing powers of directors — Whether petition properly presented.

FERGUSON v. O’NEILLVLR 30

FULL COURT (Lowe, Gavan Duffy and Martin JJ.).·6 Oct 1942·Supreme Court of Victoria

Money lenderLending money at excessive rate of interest — Loan made not at excessive rate of interest — Repayment before due date — Money lender receiving interest in excess of permitted rate — Whether offence — Money Lenders Act 1941 (No. 4872), sec. 4 — Money Lenders Act 1938 (No. 4625), sec. 29 (3).

BISHOP v. BISHOPVLR 34

MANN C.J.·14 Oct 1942·Supreme Court of Victoria

DivorceEvidence — Whether witness liable to be asked questions as to his adultery — Warning to witness — Affidavit by witness verifying answer — Denial of adultery in — Evidence in disproof of adultery — Marriage Act 1928 (No. 3726), sec. 119.

IN RE CROSSVLR 38

MacFARLAN J.·23 Sept 1942·Supreme Court of Victoria

WillTenant for life and remainderman — Construction of air raid shelter — Expenses pending conversion of estate — By whom borne.

RICHARDS v. McPHERSONVLR 44

MARTIN J.·14 Oct 1942·Supreme Court of Victoria

JusticesOffence punishable on summary conviction — Aiding and abetting — Penalty — Second offence — Police Offences Act 1928 (No. 3749), sec. 104 — Justices Act 1928 (No. 3708), sec. 74.

IN RE WOODWARDVLR 47

MANN C.J.·1 Dec 1942·Supreme Court of Victoria

WillTrust to pay income to life tenants — Income expended in payment of testator's debts, including mortgage debts — Lapse of time — Right of estates of life tenants to repayment — Right to interest — Gift for maintenance and support — Nature of gift.

MILBURN v. SHIRE OF GLENELGVLR 55

O’BRYAN J.·16 Nov 1942·Supreme Court of Victoria

Local governmentTaking lands compulsorily for work or undertaking — Order for execution of work — Variation of order by Minister — Local Government Act 1928 (No. 3720), secs. 509-514.

IN RE SLOANVLR 63

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

Administration and probateAbatement of assets — Specific devises and bequests becoming liable for payment of debts — Bequest of shares charged with payment of annuity — Valuation of bequest for purposes of abatement — Whether annuity charged on specifically bequeathed shares liable to abate with specific devises and bequests — Administration and Probate Act 1928 (No. 3632), Second Schedule.

CHARLESWORTH v. M. J. STERLING PTY. LTD.VLR 67

FULL COURT (Macfarlan, Lowe and O’Bryan JJ.).·17 Dec 1942·Supreme Court of Victoria

LicensingSupplying liquor with meals on Sundays — Meal permit — Whether offence committed — Licensing Act 1928 (No. 3717), secs. 43, 178.

R. v. LANDYVLR 73

FULL COURT (Mann C.J., Gavan Duffy and Martin JJ.)·8 Feb 1943·Supreme Court of Victoria

Criminal lawPresentment — Accused arraigned on two presentments — Presentments tried together — Proceedings a nullity.

CHARLESWORTH v. PENFOLDS WINES PTY. LTD.VLR 76

GAVAN DUFFY J.·3 Feb 1943·Supreme Court of Victoria

LicensingCompany as licensee — Permitting drunken persons to be on premises — Knowledge of barman not in charge of bar — Whether attributable to licensee — Admissibility of convictions for drunkenness — Licensing Act 1928 (No. 3717), sec. 204.

RICHARDS v. TREADWELLVLR 79

GAVAN DUFFY J.·8 Feb 1943·Supreme Court of Victoria

Police OffencesBetting — Information as to betting on intended race — Doubles chart giving information as to betting on combination of two races — Police Offences Act 1928 (No. 3749), sec. 121 (b) (ii).

CLARKE v. WATSONVLR 81

FULL COURT (Mann C.J., Macfarlan and Lowe JJ.).·10 Mar 1943·Supreme Court of Victoria

Landlord and tenantNational security — Recovery of possession of premises — Proceedings by landlord against sub-tenant holding over after determination of head tenancy — Jurisdiction of justices — Whether ousted by National Security (Landlord and Tenant) Regulations — Reasonable cause why possession should not be given — Landlord and Tenant Act 1928 (No. 3710), Part V.

CHARLESWORTH v. FEDERAL HOTELS LTD.VLR 88

FULL COURT (Macfarlan, Lowe and O’Bryan JJ.).·17 Dec 1942·Supreme Court of Victoria

LicensingDisposal of liquor — Lodger entertaining guests in her own room — Handing liquor to guests for immediate consumption — Whether a disposal of liquor on licensed premises — Whether licensee guilty of an offence — Licensing Act 1928 (No. 3717), sec. 177.

IN RE EDMONDSVLR 97

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

ExecutorsCommission on passing accounts — Quantum — Allowance by Chief Clerk to executors for legal and accountancy work not otherwise charged for by them — Review by Court — Allowance refused.

IN RE BELLVLR 103

GAVAN DUFFY J.·4 Feb 1943·Supreme Court of Victoria

WillCharity — Bequest to persons rendering in any year "the greatest benefit to humanity" — Validity.

HOUGH v. ELLISVLR 107

MARTIN J.·16 Mar 1943·Supreme Court of Victoria

County CourtPractice — Remission to County Court — Whether order should be made — Delay — County Court Act 1928 (No. 3663), sec. 58.

R. v. TRIMVLR 109

FULL COURT (Macfarlan, Martin and O’Bryan JJ.).·12 Apr 1943·Supreme Court of Victoria

Criminal LawMurder — Abortion — Use of instrument on woman to remove dead foetus — Whether a felony — Use occasioning death — Whether murder or manslaughter — Direction to jury — Crimes Act 1928 (No. 3664), sec. 62.

IN RE FITCHVLR 118

MARTIN J.·22 Apr 1943·Supreme Court of Victoria

WillConstruction — Indefinite gift of income — Gift over in event of re-marriage — Whether beneficiary absolutely entitled, subject only to divesting of gift in event of re-marriage.

BUNTINE v. HUMEVLR 123

O’BRYAN J.·4 May 1943·Supreme Court of Victoria

National securityLandlord and tenant — Ejectment of tenant — Tenant member of Volunteer Defence Corps — Whether tenant a member of the forces "engaged on war service" — National Security Act 1939-1940 (No. 15 of 1939 — No. 44 of 1940) — National Security (War Service Moratorium) Regulations, cll. 5, 29.

CHARLESWORTH v. KISSLINGVLR 129

FULL COURT (Macfarlan, Gavan Duffy and O’Bryan JJ.).·4 May 1942·Supreme Court of Victoria

LicensingSunday trading — Liquor drunk on premises of members' club — Without sanction of secretary — Whether secretary guilty of offence — Licensing Act 1928 (No. 3717), secs. 178, 250.

HAYTON v. BEERSVLR 132

MANN C.J.·7 May 1942·Supreme Court of Victoria

Factories and shopsWages board — Proceedings at meeting — Disagreement of members — Power of chairman to decide questions — When exercisable — Meaning of "questions" — Factories and Shops Act 1928 (No. 3677), sec. 155 — Factories and Shops Act 1941 (No. 4874), sec. 12.

IN RE McLUCKIEVLR 137

MANN C.J.·17 May 1943·Supreme Court of Victoria

WillBequest of furniture and personal belongings — Contents of furnished flat let to tenants — Motor car — Radio sets — Electric refrigerator — Fireproof safe — Plants and gardening implements — Whether included in bequest.

RE PRODUCERS’ OILWELL SUPPLIES LTD.VLR 141

O’BRYAN J.·3 June 1943·Supreme Court of Victoria

CompanyDefunct company — Moneys from sale of assets of — Payment into Court by Registrar-General — For whom held on trust — Claim by creditor — Practice — Trustee Act 1928 (No. 3792), sec. 63 — Companies Act 1938 (No. 4602), sec. 298.

R. v. KATAJAVLR 145

MANN C.J.·15 June 1943·Supreme Court of Victoria

Criminal lawPublic mischief — False story told by accused to shield himself from consequences of his wrongful conduct — Time of police wasted — Common law offence of doing act tending to the public mischief not committed.

BRADBURY v. BRADBURYVLR 149

FULL COURT (Macfarlan, Gavan Duffy and O’Bryan JJ.).·18 May 1943·Supreme Court of Victoria

DivorceDesertion — Deserter's offer to return — Offer not bon fide — Deserted spouse's refusal to have deserter back — Whether desertion terminated.

EVEREST v. HENRYVLR 154

MacFARLAN J.·21 July 1943·Supreme Court of Victoria

MaintenanceConfinement expenses — Complaint for — Time for making — Jurisdiction — Maintenance Act 1928 (No. 3722), sec. 27.

FISK v. JACOBSONVLR 158

FULL COURT (Mann C.J., Lowe and Martin JJ.).·24 Aug 1943·Supreme Court of Victoria

JusticesJurisdiction — Information for offence committed within ten miles of adjoining bailiwick — Made returnable in Court of adjoining bailiwick by justice for bailiwick in which offence committed — Validity — Jurisdiction to hear and determine — Justices Act 1928 (No. 3708), secs. 29, 32, 86, 211.

B.E.F. PTY. LTD. v. OXFORD THEATRESVLR 163

O’BRYAN J.·25 May 1943·Supreme Court of Victoria

ContractConsideration — Restraint of trade.

DI GIANDOMENICO v. NARDELLIVLR 176

FULL COURT (Mann C.J., Lowe and Martin JJ.).·3 Aug 1943·Supreme Court of Victoria

NegligenceRoad accident — Overturning of motor truck — Whether sufficient evidence of want of care.

County CourtPractice — Non-suit — Power to grant — County Court Act 1928 (No. 3663), sec. 73.

ANTHONY v. STANTONVLR 179

GAVAN DUFFY J.·3 Sept 1943·Supreme Court of Victoria

Landlord and tenantTenancy "for the duration of the war or a date to be fixed at the will of the lessor" — Void for uncertainty — Entry into possession and payment of weekly rental by tenant for ten months — Whether tenancy from year to year — Notice to quit — Sufficiency.

ANGLO CZECH. ETC. BANK v. JANSSENVLR 185

FULL COURT (Mann C.J., Lowe and Martin JJ.).·23 Aug 1943·Supreme Court of Victoria

Conflict of lawsCompany — Incorporated in foreign country — Right to sue — Whether foreign country under de facto control of invader and company dissolved by de facto government — Existence of de facto government — Method of proof — Judicial notice.

LEWIS v. MICHAELIS HALLENSTEIN & CO. PTY. LTD.VLR 202

FULL COURT (Mann C.J., Lowe and Martin JJ.)·7 Sept 1943·Supreme Court of Victoria

Workers' CompensationAgreement for settlement of all claims by payment of lump sum — Agreement for redemption of weekly payments — Workers Compensation Board refusing to accept agreement — Power of Board to award lump sum or make declaratory award — Workers' Compensation Act 1928 (No. 3806), sec. 7, Second Schedule, pars. (15), (16) — Workers' Compensation Act 1937 (No. 4524), secs. 4, 10.