Leky v Pacific Suppliers (SI) Ltd [2020] SBHC 29; HCSI-CC 565 of 2019 (21 April 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kim Wood Leky v Pacific Suppliers (SI) Ltd
Citation:
Date of decision:	21 April 2020
Parties:	Kim Wood Leky v Pacific Suppliers (SI) Ltd, Gwelnael Bizouard
Date of hearing:	13 March 2020
Court file number(s):	565 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:
Order:	Claimant’s Claim filed on 7th October 2019 is hereby strike out Costs payable to the Defendant by the Claimant on standard basis
Representation:	Mr. L Kwana for the Claimant Mr A Radclyffe for the Defendants (1) and (2)
Catchwords:
Words and phrases:
Legislation cited:	Stamp Duties Act, s9
Cases cited:	Austere Enterprise PTY Ltd v Zhong Wu Zhou

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 565 of 2019

KIM WOOD LEKY
Claimant

V

PACIFIC SUPPLIERS (SI) LIMITED
First Defendant

GWELNAEL BIZOUARD
Second Defendant

Date of Hearing: 13 March 2020
Date of Ruling: 21 April 2020

Mr. L Kwana for the Claimant
Mr. A Radclyffe for the Defendants (1) and (2)

RULING ON APPLICATION TO STRIKE OUT CLAIM

Faukona, PJ: A claim in category B was filed by the Claimant on 7^th October 2019, but without any sworn statement in support.

2. In response both Defendants filed an application to strike out the claim on the ground that no reasonable cause of action is disclosed.
3. Being as it may, the content of the grounds for the application are point of law and procedure.
4. One, as the Applicants outline that the Claimants’ statement of claim was based on a written contract which was not stamped as required by S.9 of the Stamp Duties Act, before the commencement of the these proceedings on 7^th October 2019, therefore it render it inadmissible in Court.
5. The second ground is that the Claimant as named in the claim has no cause of action against the Defendants. The reason basically is that the contract the Claimant relied on was between the first Defendant and Kim Woods and not Kim Wood Leky. Apparently the Claimant has no cause of action against the second Defendant as well in person as he was not a party to the contract.
6. The Claimant’s Counsel had filed written submissions which he detailed many issues under the rules ranging from filing of defense, powers of the court to strike out a claim, and supported by applicable case authorities.
7. Whilst the Court appreciates the Counsel for his assistance, however, the grounds upon which the application premised concern two simple areas of law which I have outlined above.
8. In dealing with Rules 5.11 to 5.16 which contain requirements for filing of a defense. Undoubtedly that cannot be denied. That’s the process.
9. However, upon reading Rule 9.75 upon which this application premised, there is nothing, even in the entire laws which require a defense must be filed as a requisite before an application in this nature is filed.
10. In other words R9.75 provide two situations, one of which is a claim. If it appears the claim for relief is frivolous or vexatious or no reasonable cause of action is disclosed, the Court may on application by a party dismiss the claim. Once a claim was received and the Defendant thinks it falls under one of the categories above, application for striking out or dismissing the claim be filed even without a defense being filed.
11. The tricky part, in my opinion, is whether the application to strike out or dismiss the claim can be footed upon filing of the defense? In my opinion it is not so by the rule.
12. S.9 of Stamp Duties Act is a general provision which make reference to documents executed in Solomon Islands, more specifically related to any matter or thing done or to be done in Solomon Islands, with exception of criminal proceeding. Anything done or can be done can best refer to as contract of employment document inclusive.
13. I refuse the argument that many contracts of employment document referred to Court were not stamped. That’s pure assumption without one shred of evidence of proof. Neither the exemptions amplified under schedule 3 to the stamp Duty Act had exempted Section 9; in fact it has reflected nothing. Again that is absolute misconception of the law by the Counsel for the Claimant.
14. S.9 is very significant where the major subject or document rely on is a written contract. That must be stamped. Employment Act may not provide a provision for this. But the function of law must not be denied. All the laws must function together to guide the social and business activities of the people in this nation. See the case of Austere Enterprise PTY LTD V Zhong Wu Zhou and others (^[1])
15. In my opinion S.9 is more important than identifying a party. Identifying a party can be done by written request for further particulars. But further particulars cannot be requested where applicable law is very clear and precise, especially when the law demands something to be done and was not done. None compliance to the requirement of law, as a prerequisite renders whatever process follows are all frivolous and vexatious.
16. In the circumstances as I record above I must therefore strike out the claim accordingly with costs.

Orders:

1. Claimant’s Claim filed on 7^th October 2019 is hereby strike out.
2. Costs payable to the Defendant by the Claimant on standard basis.

THE COURT.

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^[1] Civil Appeal No. 7 of 2012.