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[1945] VLR(51 results)

Cases reported in this volume of the Victorian Reports

ALBION QUARRYING CO. PTY. LTD. v. ASSOC. QUARRIES PTY. LTD.VLR 1

HERRING C.J.·21 Apr 1944·Supreme Court of Victoria

ContractValidity — Restraint of trade — Company — Articles of association — Control over business of shareholders — Reasonableness of restrictions — Whether company a trade union — Trade Unions Act 1928 (No. 3788), secs. 3, 6.

IN RE SHARPVLR 31

HERRING C.J.·21 Aug 1944·Supreme Court of Victoria

ExecutorsAppointment as directors of company in which testator had large shareholding — Receipt of remuneration as directors — Whether held for benefit of testator's estate — Conflict of interest and duty — Trustee Companies Act 1928 (No. 3793), sec. 17.

PARSONS v. PAYNEVLR 34

HERRING C.J.·29 Sept 1944·Supreme Court of Victoria

National SecurityLandlord and tenant — Recovery of possession of premises — Exchange of houses by tenants — Whether binding on landlord — National Security (Landlord and Tenant) Regulations — National Security Act 1939-1943 (No. 15 of 1939 — No. 38 of 1943).

CROFT v. KENNAUGHVLR 40

LOWE J.·22 Sept 1944·Supreme Court of Victoria

Transfer of landMortgage — Possession of mortgaged premises — Action for — Right of second mortgagee to bring — Transfer of Land Act 1928 (No. 3791), sec. 151.

RIVERSIDE MOTORS PTY. LTD. v. ABRAHAMSVLR 45

FULL COURT (Macfarlan, Martin and O’Bryan JJ.).·2 June 1944·Supreme Court of Victoria

Work and labourClaim on quantum meruit — Defence that work negligently done — Onus on plaintiff to establish work done in a skilful manner.

R. v. HARFORDVLR 57

FULL COURT (Herring C.J., Macfarlan and O’Bryan JJ.).·5 Oct 1944·Supreme Court of Victoria

Criminal lawCommittal for trial of accused — Under seventeen years at time of offence — Over age of seventeen at time of committal — Jurisdiction of Supreme Court to deal with accused.

R. v. THE MEDICAL BOARD OF VICTORIAVLR 60

LOWE J.·30 Oct 1944·Supreme Court of Victoria

Medical practitionerRemoval from register — "Infamous conduct in a professional respect" — Inquiry as to — Notice of inquiry — "Reason" for proposed removal — Meaning — Whether negligence infamous conduct in professional respect — Medical Act 1928 (No. 3730), sec. 7 — Medical Act 1933 (No. 4131), sec. 4.

FRY v. METZELAARVLR 65

MARTIN J.·21 Nov 1944·Supreme Court of Victoria

National securityLandlord and tenant — Expiration of term of lease — Holding over by tenant — Against landlord's will — National Security Regulations — Whether relationship of lessor and lessee within meaning of — National Security Act 1939-1943 — National Security (Landlord and Tenant) Regulations, reg. 15.

HARDMAN v. LYALL & SONS PTY. LTD.VLR 71

MARTIN J.·24 Nov 1944·Supreme Court of Victoria

Workers' compensationInjury to worker — Notice of intention to claim compensation — Commencement of action for damages for negligence — Stay of proceedings — Pending election of remedies by worker — Workers' Compensation Act 1928 (No. 3806), sec. 5 (2) (b).

BLAKISTON AND CO. PTY. LTD. v. TRANSPORT REGULATION BOARDVLR 74

FULL COURT (Herring C.J., Lowe and Gavan Duffy JJ.).·30 Aug 1944·Supreme Court of Victoria

Transport regulationCommercial goods vehicle — Renewal of licence — Licence for a longer period than one year — Review of decision of Transport Regulation Board by Governor in Council — Governor in Council not exercising power to review — Transport Regulation Act 1933 (No. 4198), secs. 31, 37 — Transport Regulation Act 1935 (No. 4298), sec. 4.

MARTIN v. A. G. FOR VICTORIAVLR 91

FULL COURT (Herring C.J., Gavan Duffy and O’Bryan JJ.).·30 Aug 1944·Supreme Court of Victoria

Public ServiceTransfer of officers — Classification and emoluments of transferred officers — Return by Public Service Commissioner — Whether classification finally determined by — Public Service (Transfer of Officers) Act 1937 (No. 4511), secs. 3, 4.

COOK v. DOWNIEVLR 95

FULL, COURT (Herring C.J., Gavan Duffy and Martin JJ.).·6 Dec 1944·Supreme Court of Victoria

National securityLandlord and tenant — Decision of Judge of Supreme Court under National Security (Landlord and Tenant) Regulations — Whether appeal lies therefrom to Full Court — Judiciary Act 1903-1944, sec. 39 (2) (a).

DAWSON v. DAWSONVLR 99

O’BRYAN J.·30 June 1944·Supreme Court of Victoria

CompanyTrusts — Shares held by trust estate — Joint holding — Right to split into three joint holdings — Names in different order — Alteration of register.

COX v. COXVLR 105

MARTIN J.·29 June 1944·Supreme Court of Victoria

DivorceDomicil — Soldier sent to another State — Intention formed to reside there after discharge from army — Establishment of home there for wife — Residence at home when on leave — Acquisition of domicil of choice.

FRIER & SONS v. O’ROURKEVLR 107

FULL COURT (Macfarlan, Lowe and O’Bryan JJ.).·10 Aug 1944·Supreme Court of Victoria

National securityLandlord and tenant — Recovery of possession of premises — Premises reasonably required by lessor for personal occupation — Particulars — National Security Act 1939-1943 — National Security (Landlord and Tenant) Regulations, cl. 15.

IN RE BULLOCKVLR 111

LOWE J.·24 Oct 1944·Supreme Court of Victoria

Administration and probateInquiries as to next of kin — Reference to chief clerk — Form of order where inquiries previously made.

CAMERON v. JAMESVLR 113

FULL COURT (Herring C.J., Gavan Duffy and Martin JJ.).·20 Dec 1944·Supreme Court of Victoria

JusticesInformation — Trifling offence — Dismissal — Form of entry of dismissal in register — Estoppel — Whether proceedings ended in defendant's favour — Right of defendant to sue for malicious prosecution or false imprisonment — Justices Act 1928 (No. 3708), sec. 72 — Police Offences Act 1928 (No. 3749), sec. 199.

CRUPI v. CRUPIVLR 124

LOWE J.·7 Feb 1945·Supreme Court of Victoria

DivorceDesertion — While period of desertion running respondent interned as enemy alien — Whether period interrupted.

IN RE EDMONDSVLR 126

O’BRYAN J.·13 Feb 1945·Supreme Court of Victoria

Administration and ProbateWill — Appointment of general executors — Testator a trustee of an estate — Separate appointment of executors of the trust estate — Form of grant of probate.

THE KING v. THE GOVERNOR OF THE METROPOLITAN GAOLVLR 129

MacFARLAN J.·14 Mar 1945·Supreme Court of Victoria

General SessionsAppeal from conviction by Court of Petty Sessions — Appellant absent, but represented — Justices Act 1928 (No. 3708), sec. 137 — Justices Act 1938 (No. 4572), sec. 4.

R. v. CURWOODVLR 133

FULL COURT (Herring C.J., Macfarlan and Gavan Duffy JJ.)·12 Nov 1944·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.

HASELHURST v. ELLIOTVLR 153

HERRING C.J.·22 Feb 1945·Supreme Court of Victoria

National SecurityLandlord and tenant — Parol lease of residential business premises — Consent of Treasurer not previously given thereto — Invalidity — Creation of interests in land by parol — Whether lease "a lease taking effect in possession" — Property Law Act 1928 (No. 3754), secs. 53 (1) (a), 54 (2) — National Security Act 1939-1943 (No. 15 of 1939 — No. 38 of 1943) — National Security (Economic Organisation) Regulations, Pt. III A.

GILES v. YUEN DINVLR 156

MacFARLAN J.·6 Dec 1944·Supreme Court of Victoria

National SecurityPrices regulation — Order fixing maximum price — Sale of furniture — Agreement for sale prior to order — Delivery thereafter — Sale in excess of maximum price under order — Whether offence — National Security Act 1939-1943 — National Security (Prices) Regulations (No. 176 of 1940).

HANNABERRY v. COWTHERVLR 158

MacFARLAN J.·6 Dec 1944·Supreme Court of Victoria

Police offencesBehaving in offensive manner — In public place — Man dressed as woman in public street — At night — Whether offence committed — Police Offences Act 1928 (No. 3749), sec. 25.

MAUDSLEY v. COLONIAL MUTUAL ETC. LTD.VLR 161

O’BRYAN J.·16 Feb 1945·Supreme Court of Victoria

InsuranceLife insurance policy — Pounds sterling — Contract made in Australia — To pay in Australia or New York — Currency — Payment in Australian currency.

HOLDEN v. NUTTALLVLR 171

HERRING C.J.·28 Mar 1945·Supreme Court of Victoria

National SecurityLandlord and tenant — Recovery of possession of premises — Hardship — Parties to action — Lease or licence — Sub-lease or assignment — National Security Act 1939-1943 — National Security (Landlord and Tenant) Regulations.

WILSON v. HALTONVLR 180

HERRING C.J.·16 Mar 1945·Supreme Court of Victoria

National SecurityLandlord and tenant — Recovery of possession of premises — Mortgage — Action by mortgagor for possession — Whether consent of mortgagee thereto necessary — Plaintiff requiring part of premises only — Hardship — Transfer of Land Act 1928 (No. 3791), secs. 156, 157 — National Security Act 1939-1943 — National Security (Landlord and Tenant) Regulations.

HIRSCH v. HIRALAL LTD.VLR 189

O’BRYAN J.·12 Apr 1945·Supreme Court of Victoria

PracticeDefault of appearance — Order for trial — Rules of Supreme Court, 1938, Order XIII.

R. v. WOESSVLR 190

GAVAN DUFFY J.·23 Apr 1945·Supreme Court of Victoria

National SecurityEvidence — Admissions — Accused required to answer questions — Oral answers inadmissible in evidence — Answers taken down in writing and signed by accused — Whether writing admissible in evidence — National Security Act 1939-1943 — National Security (Evidence) Regulations, reg. 19 — National Security (Rationing) Regulations, reg. 21.

IN RE BARLOWVLR 193

MARTIN J.·26 Apr 1945·Supreme Court of Victoria

Administration and probatePractice — Executors seeking probate of earlier will — Later will allegedly invalid — Notice to beneficiary under later will — Directions for trial of issue of validity of such will.

IN RE CAMERA ILLUSTRATORS PTY. LTD.VLR 195

O’BRYAN J.·23 May 1945·Supreme Court of Victoria

CompanyDefunct company — Restoration to register after being struck off under repealed Act — Companies Act 1938 (No. 4602), sec. 295 (6).

IN RE DE LITTLEVLR 198

FULL COURT (Macfarlan, Lowe and Martin JJ.).·25 May 1945·Supreme Court of Victoria

Administration and ProbateExecutor's Commission — Trustee company's right to commission on income — Meaning of "income" — Trustee Companies Act 1928 (No. 3793), sec. 17.

KNIGHT v. PORTERVLR 208

GAVAN DUFFY J.·4 May 1945·Supreme Court of Victoria

JusticesEvidence — Order to review — Proof of conviction — Minute of conviction not exhibited on affidavit — Leave to file further affidavit — Justices Act 1928 (No. 3708), sec. 150.

CRAVEN v. CRAVENVLR 212

MacFARLAN J.·25 Sept 1944·Supreme Court of Victoria

DivorceCollusion — Petition tainted by collusion — Cross-petition — Whether hearing of cross-petition should proceed.

IN RE WILLIAMSVLR 213

FULL COURT (Gavan Duffy, Martin and O’Bryan JJ.).·28 May 1945·Supreme Court of Victoria

Conflict of lawsMortgages on real estate — Movables or immovables.

O’KEEFE v. CITY OF CAULFIELDVLR 227

GAVAN DUFFY J.·19 June 1945·Supreme Court of Victoria

Local GovernmentBuilding by-law — Reference to regulation made by council — By-law printed in Government Gazette — Regulation not set out at length — Whether by-law published — Local Government Act 1890 (No. 1112), sec. 204.

BELFIELD v. BELFIELDVLR 231

O’BRYAN J.·19 June 1945·Supreme Court of Victoria

DivorceDesertion — Three years and upwards — Whether statutory period complete — Marriage Act 1928 (No. 3726), s. 75 (a).

BURGESS v. THE HERALD & WEEKLY TIMES LTD.VLR 239

HERRING C.J.·12 June 1945·Supreme Court of Victoria

LibelInterrogatories — Juror alleging newspaper article meant he had not performed his duty — Defence of fair comment — Interrogatories as to plaintiff's belief in evidence heard by him as a juror — Relevancy.

DE LONGVILLE v. DE LONGVILLEVLR 243

GAVAN DUFFY J.·20 Dec 1944·Supreme Court of Victoria

Administration and probateMaintenance — Order for support of children — Arrears owing at death of defendant — Whether a debt or liability executor under a duty to pay.

HENRY v. INSP. FACTORIES & SHOPSVLR 246

GAVAN DUFFY J.·19 June 1945·Supreme Court of Victoria

Factories and shopsRefusal by wages board to deal with dispute — Jurisdiction — Whether such refusal infringed "any legal or equitable right" depending on the construction of a statute — Rules of Supreme Court 1938, Order LIV (A), r. 2 — Factories and Shops Act 1928 (No. 3677), sec. 147 — Factories and Shops Act 1936 (No. 4461), sec. 5.

IN RE MADDERVLR 250

GAVAN DUFFY J.·19 June 1945·Supreme Court of Victoria

Administration and probateWill — Beneficiary signing as witness — Share undisposed of — Closer settlement lease — Purchase money owing to establish freehold right — Whether testator's real estate or undisposed of part of testator's estate primarily liable for balance of purchase money — Intestacy — Division between widow and daughter — Whether daughter liable to bring share in testator's estate into hotchpot — Probate and Estate duty — Fund from which payable — Meaning of "residue" — Administration and Probate Act 1928 (No. 3632), secs. 34, 35, 47 (1)(f), 48 (a), 163 — Closer Settlement Act 1938 (No. 4597), secs. 22, 23, Second Schedule — Estate Duty Assessment Act 1914-1944, sec. 35 et seq.

MILLEN v. GROVEVLR 259

GAVAN DUFFY J.·1 Aug 1945·Supreme Court of Victoria

National SecurityLandlord and Tenant — Recovery of possession of premises — Required for personal occupation — Defendant a "protected person" — Reasonably suitable alternative accommodation — Whether "less congenial" than the premises occupied — Meaning of "congenial" — National Security Act 1939-1943 — National Security (Landlord and Tenant) Regulations — National Security (War Service Moratorium) Regulations.

STRAUSS v. ROTHFIELDVLR 263

MacFARLAN J.·22 Aug 1945·Supreme Court of Victoria

National SecurityLandlord and tenant — Recovery of possession of premises — Statement of claim — No allegation of compliance with National Security regulations — Whether statement of claim should be struck out.

R. v. FLANAGANVLR 265

LOWE J.·22 Aug 1945·Supreme Court of Victoria

Criminal LawEvidence — Cross-examination of accused — Name of accused — Whether accused can be asked if his name is other than that given by him in the witness box.

CRITERION v. MELB. & METRO. BOARD OF WORKSVLR 267

LOWE J.·11 June 1945·Supreme Court of Victoria

Money paidCrown — Water — Rates — Exemption — Property in occupation of Crown — Crown in right of Commonwealth — Payment under duress — Threat to cut off water supply — Right to recover payments made in respect of rates and of excess water — Melbourne and Metropolitan Board of Works Act 1928 (No. 3731), secs. 72, 213.

DE LA RUE v. MATTHEWSVLR 275

O’BRYAN J.·8 Aug 1945·Supreme Court of Victoria

National SecurityPerson other than manufacturer or distributor acquiring tyre — Onus of proof as to being or not being a manufacturer or distributor — Whether on informant or defendant — Time limit for prosecution — National Security Act 1939-1943, sec. 10 — Crimes Act 1914-1941, secs. 14, 21.

R. v. HORNBUCKLEVLR 281

FULL COURT (Macfarlan, Lowe and Martin JJ.).·14 May 1945·Supreme Court of Victoria

Criminal lawDrunkenness — Rape — Intent — Direction to jury.

CITY OF CAMBERWELL v. WALDMANNVLR 290

LOWE J.·20 June 1945·Supreme Court of Victoria

Local GovernmentStreet construction — Road on Crown land — Whether road formed means of back access to or drainage from premises abutting thereon — Liability to contribute — Local Government Act 1928 (No. 3720), sec. 574 (1).

IN RE HOLLOLEVLR 295

O’BRYAN J.·28 Aug 1945·Supreme Court of Victoria

WillTrust — Ultimate residue — Gift of to executor and trustee "to be disposed of by him as he thinks best" — Whether gift or trust — Creation of trust — Trust void for uncertainty — Property Law Act 1928 (No. 3754), sec. 131.

IN RE PENNELLVLR 302

O’BRYAN J.·28 Aug 1945·Supreme Court of Victoria

Executors and administratorsEstate comprising business and real estate — Management and control by one only — Right of others to inspect documents, vouchers, etc., relating to administration — Whether same right possessed by beneficiary — Inspection by auditor — Form of order.

EPSTEIN v. MEDICAL BOARD OF VICTORIAVLR 309

LOWE J.·23 July 1945·Supreme Court of Victoria

Medical practitionerRemoval from register — "Infamous conduct in a professional respect" — Meaning — Appeal from decision of Medical Board — Nature of appeal — Medical Act 1933 (No. 4131), secs. 4, 9.