Feng Li v Guo [2014] SBHC 40; HCSI-CC 262 of 2008 (5 March 2014)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 262 of 2008

BETWEEN :

GUO FENG LI
Claimant

AND:

ROBIN GUO
First Defendant

AND:

MATHIAS SIMUKAHI
Second Defendant

AND:

ATTORNEY GENERAL
(Representing Registrar of Titles)
Third Defendant

AND:

SOLOMON BREWERIES LIMITED
Fourth Defendant

DATE OF RULING : 5th March 2014

J Katahanas for Applicant
M Tagini for Claimant
K Levi for First and Second Defendants
J Muria for Third Defendant

RULING

1. On 9 March 2012, this court heard an Oral application made on behalf of the Fourth Defendant ("the Applicant") to strike out this claim on two grounds. The First ground is that the Claimant failed to comply with the orders of the court dated 16 February 2012 and filed on 17 February 2012. ("the order"). The Second ground is that the Loan agreements between the Defendants and the Claimant, which purport to give the Claimant security interests over Parcel No. 192-010-230 ("PN 230") to repay the Claimant's loans were inadmissible.
   
2. The Order is relevantly in these terms: "IT IS ORDERD THAT:-
   
   1. The Fourth Defendant filed and serve its Amend Defence, Counterclaim and Cross-Clam by 4.00pm on 20 February 2012;
      
   2. Any reply and/or Defence to the said amended Defence, Counterclaim and Cross-claim shall be filed and served by 4.00pm on 27 February 2012;
      
   3. The Claimant shall pay the $5,000.00 costs which she was ordered to pay to the Fourth Defendant on 31 August 2011, to the Trust Account of the Fourth Defendant's solicitors within seven days.
      
   4. Within Seven days, the Claimant's Solicitors shall:
      
      • (a) Inform the court and the solicitors for all other parties, in writing, as to whether or not the various loan agreements referred to paragraph 5 of the claim against the Fourth Defendant filed on 31 October 2011 have been duly stamped as charges (including penalties for late payment) pursuant to the Stamp Duties Act (Cap. 126) ("the Act")
        
      • (b) Where any of the said loan agreements have been duly stamped as a foresaid, produce to the court and the solicitors for all other parties, complete copies of those duly stamped loan agreements;
        
      • (c) Inform the court and the solicitors for all other parties, in writing, as to whether or not the Claimant continues to maintain her allegations of fraud against the Second and Fourth Defendants or at all;
        
      • (d) Where the Claimant intends to continue to maintain her said allegations of fraud, inform the court and the solicitors for all the parties, in writing, as to whether or not the Claimant's legal practitioner has inspected the Claimant's documents and other material and satisfied himself that there is credible material which establishes an apparent case of fraud against the Second and the Fourth Defendants.
        
5. The matter is adjourned to 1.30pm on 9 March 2012 for further mention."
   
3. The Fourth Defendant duly complied with the order on 17 February 2012, in compliance with paragraph 1 of the Order, when it filed Amended Defence, Counterclaim and Cross-claim. The Claimant failed to comply with the order when the Claim came for mention at 1.30pm on 9 March 2012.
   
4. In her attempt to comply with the order, the Claimant wrote to the Registrar on 12 March 2012 enclosing the agreements signed by the Second Defendant to loan money and used Parcel No. 192-010-230 as security. The First agreement was signed on 7 May 2005. The total loan was US$40,428.00. The Second agreement was signed on 27 May 2005 for the sum of US$20,000.00 fully settled in full for US$10,000.00. The Third agreement was signed on 23 August 2007 for the sum of SBD300,000.00. The Fourth agreement was signed in October 2007 for a loan of USD30,000.00. These loan agreements were allegedly executed between the First and Second Defendants with the Claimant.
   
5. It is obvious that the agreements were merely stamped after this claim was filed on 19 August 2008. It is also true that the agreements were only stamped after the claim against the Fourth Defendant was filed on 31 October 2011.
   
6. The issues regarding these agreements are whether the Claimant can admit them as evidence in this claim and/or whether they affect transfer of interest over Parcel 230 to the Claimant as security for the repayment of the loans.
   
7. The answers to these issues are provided by section 9 of the Stamp Duty Act (Cap. 126) "the Act". That section states: "S.9.No document executed in Solomon Islands or relating, wheresoever executed, to any property situate in Solomon Islands or to any matter or thing done or to be done in Solomon Islands, shall, except in criminal proceedings and in civil proceedings by a collector to recover any duty or penalty under this Act, be pleaded or given in evidence or admitted to be good, useful or available in law or equity unless it is duly stamped in accordance with the law in force at the time when it was first executed."
   
8. The Claimant failed to comply with the court order. More importantly, the Claimant failed to have the agreements duly stamped when each of them was first executed on 7 May 2005, 27 May 2005, 23 August 2007 and October 2007 respectively. On the contrary, duty on them were merely paid and then stamped on 12 March 2012. Section 9 of the Act prevents the 4 agreements from being pleaded or admitted in this claim. They do not affect the transfer of any interest over PN 203 to the Claimant. It is clear to this court that the principles enunciated in Austree Enterprises Pty Ltd & another –v- Shiyao Guo and Others. SICOA CAC No. 7 of 2012 applies in this case. In the result, the oral application by the Fourth Defendant succeeds.
   

ORDER:

1. The Claim is struck out.
2. The Claimant is to pay the Defendants' costs of this claim.

To be taxed if not agreed.

THE COURT