R v MANSER No. SCCRM-99-25 Judgment No. S91
[1999] SASC 91
•11 March 1999
R v MANSER
[1999] SASC 91
REASONS FOR RULING
MILLHOUSE J The accused has been charged with arson, s85(1) of the Criminal Law Consolidation Act. The Particulars of Offence:-
"Garry James Manser on the 30th October, 1997 at Northfield, intending to damage the property of another, without lawful authority to damage such property and knowing no such lawful authority existed, damaged a dwelling house the property of Audrey Manser by fire, such damage amounting to more than $25,000."
The facts to be alleged by the Crown are that the accused and his wife had separated. After the separation the accused bought a house at Northfield. He used money from his superannuation pay-out from the Fire Brigade. The title to the property was in his name alone. The wife, on 24 October 1997 had the accused served with notice of a caveat on the title. On the 30 October the accused was served with what is called a "Form 7 Notice". This is a notice pursuant to Rule 8 of the Family Law Rules made under the Family Law Act, 1975 (Cth). The notice seeks final orders in favour of the wife:-
"1..... That the husband do pay to the wife a sum to be determined by this Honourable Court.
2. That the husband do pay the wife's costs.
3... Such further or other orders as this Honourable Court deems just and equitable."
Later on that day after being served with the Form 7 Notice the accused is alleged to have set fire to the house.
Last Monday the trial was to begin. It was to be short because the facts had been agreed. The only point was whether the house was "the property of another". As this is a matter of law, I was puzzled as to why there should be a trial by jury at all.
I had the accused arraigned in the absence of the jury panel. He pleaded not guilty. I asked counsel for the accused, Mr David Edwardson, why we needed a jury. After some warm discussion it was agreed by him and by the Crown Prosecutor, Mr Roderick Jensen, that I should, before a jury was empanelled, express an opinion on the point and counsel would then consider their positions.
Mr Jensen went first to s84 of the Criminal Law Consolidation Act which defines "owner" - "owner of property means a person wholly entitled to the property both at law and in equity."
Mr Jensen's argument was that the accused was not "wholly entitled to the property". The claim made in the family court by the Form 7 notice had created a chose in action. The chose in action was the property of the wife. It was a claim against the husband's property and his property included the house which he had damaged.
Mr Jensen referred me to the meaning of "chose in action" in Halsbury's Laws of England (4th edition re-issue, volume 6, p2, Paragraph 1):-
"The expression 'chose in action' or 'thing in action' in the literal sense means a thing recoverable by action, as contrasted with a chose in possession, which is a thing of which a person may have not only ownership but also actual physical possession. The meaning of the expression 'chose in action' has varied from time to time but is now used to describe all personal rights of property which can only be claimed or enforced by action, and not by taking physical possession. It is used in respect of both corporeal and incorporeal personal property which is not in possession."
The wife therefore had a chose in action, a form of property. She was seeking to enforce a claim against the accused by taking action. That was the purpose and effect of the Form 7.
Mr Jensen referred me to two cases. The first is In the Marriage of B.T. and L.D. Carvill (1984) 9 Fam LR 1055. The parties had built a house on land owned by the husband's father. In the circumstances, the husband had a claim against the father for transfer to him of the title of the land on which the house stood. This was a chose in action. The wife made a claim, pursuant to s79 of the Family Law Act, for the transfer to her of the husband's chose in action. Section 79 reads, in relevant part;-
"In proceedings with respect to the property of the parties to a marriage or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property ..."
Barblett SJ, in the course of his Reasons said (@ 1056):-
"... the wife is seeking to have a chose in action which, she says, is owned by the husband, vested in her. The chose in action is constituted by a right of action which the wife says the husband owns, being a right to take proceedings against his father.
...
Halsbury goes on then to consider various choses in action and it is quite clear that a right to take action is a chose in action within the meaning of those words."
Mr Jensen relied on the decision in Carvill to establish that the accused's wife had a chose in action, a claim against the accused. It is a claim: whether it succeeds eventually or not does not matter: the claim is the chose.
Mr Jensen next went to a recent Court of Criminal Appeal decision, R v Holden (unreported Judgment No. S6861, delivered 24 September 1998). The appellant had been convicted of three counts of arson for damaging his house by fire. There was a mortgage on the property and the point at trial was whether the mortgagee having a proprietary interest in the property, the appellant was "wholly entitled to it".
Williams J with whom Perry J agreed:-
" Having regard to the wide definition of land in the Real Property Act it is apparent that proprietary rights of mortgagee and freeholder concurrently exist with respect to an hereditament - whether corporeal or incorporeal. Thus, concurrent rights are exercisable by the proprietor of a mortgage and the proprietor of the fee simple with respect to the land and buildings thereon and also with respect to the associated incorporeity ..."
My brother then set out the definition of "property" in s5 of the Criminal Law Consolidation Act:-
"property means real or personal property whether tangible or intangible and includes a wild animal that is in captivity or ordinarily kept in captivity"
and went on:-
" The right of the appellant to the premises in question was only as registered proprietor of the freehold. There also existed the mortgagee's estate or interest. The appellant and mortgagee each had different estates or interests but both are encompassed by the generic term 'property' as used in the Criminal Law Consolidation Act.
...
In these circumstances damaging the premises (or hereditament) at Windsor Gardens necessarily involved damage to the 'property' (within the Criminal Law Consolidation Act s5) of the mortgagee by depreciating its value as security as well as damaging the property of the appellant as registered proprietor of the fee simple.
...
In order for his argument to succeed the appellant must demonstrate that in terms of legal principle he was 'wholly entitled to the property' described in the information - namely premises at Windsor Gardens comprising a dwelling house. The property so described has a physical manifestation in the particular land and building to which attaches a bundle of rights with (in this case) diverse proprietorship. If the registered proprietor of the fee simple damages the corporeality, damage results to the attaching incorporeality and to all associated proprietary rights."
The Court came to the conclusion that the appellant had been rightly convicted because he was not "wholly entitled to the property": he was not the owner of the property as "owner" is defined in s84 of the Criminal Law Consolidation Act.
Mr Edwardson sought to distinguish both decisions because, he argued, in each there was an obvious proprietary interest in land, in Carvill based on proprietary estoppel, in Holden based on a mortgage: not so here. Mr Jensen acknowledged that if I were to find his way I would be extending the application of the principle in Holden: maybe so, maybe not. I have come to the conclusion that the same principle applies here as in Carvill and as in Holden.
Apart from all this, it may be that the lady had an equitable interest in the house on the principles in Baumgartner v Baumgartner (1987) 164 CLR 137. Perhaps that is why she put a caveat on the title. I don't know because the point was not raised and it doesn't matter for the purposes of coming to a decision.
She had an interest in all the property of the accused (including the house on the land of which the accused is registered proprietor) being preserved until the Family Court could make a decision on her claim. Damage to the house may have diminished the value of her chose in action, her claim against the accused. If the house is damaged, he has the less to satisfy his wife's claim.
The chose in action is an interest in his property. His property includes the land and the house built on it. Therefore the accused is not wholly entitled to that property and, in terms of the definition, is not the owner of it. The same principle applies here as in the two cases cited.
I am glad to have been able to come to this conclusion as a matter of law because it accords with common sense. The accused admits he set fire to the house. The almost irresistible inference I should have thought - although this will be a matter for the jury - is that, having notice of the caveat and having been served with the Form 7, he set fire to the house to defeat part at least of the wife's claim. It would be quite wrong if assets could be destroyed like this to defeat claims to a share in them. The law has already recognised the same principle in other ways, for example by development of the Mareva injunction.
I therefore have come to the conclusion that Mr Edwardson's point fails, that, as a matter of law, the house damaged by fire is "the property of another", that consequently the accused is not the owner of it and that the Information is good.
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