Bintan Mining (SI) Ltd v Kaitu'u [2021] SBHC 81; HCSI-CC 316 of 2020 (12 July 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Bintan Mining (SI) Ltd v Kaitu’u
Citation:
Date of decision:	12 July 2021
Parties:	Bintan Mining (SI) Limited v David Kaitu’u, Eddie Peseika, Jessy Kaipuia and Jefter Tahughena, Chris Kaitu’u and Don Kaitu’u
Date of hearing:	16 April 2021
Court file number(s):	316 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. Claim filed on 10th July 2020 is hereby struck out. 2. Order that the Claimant and the 2nd Defendants to enter into a new Agreement in respect of trespass and damages caused by the Claimant with Tepogima customary land in Rennell Island. 3. Order that assessment be carried out to assess the extent of trespass and damages caused by the Claimant with Tepogima customary land, which shall be taken into account in the new Agreement under order 2 above.
Representation:	Ms S. Kabau for the Claimant No one for the 1st and 2nd Defendants but submissions filed in time
Catchwords:
Words and phrases:
Legislation cited:	Stamp Duties Act S126, S 123, S9, S20, S3
Cases cited:	Austree Enterprises PTY Ltd v Guo [2021] SBCA 19, Spirit Haus Ltd v Marshall [2004] PNGC 166

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Case No. 316 of 2020

BETWEEN

BINTAN MINING (SI) LIMITED
Claimant

AND:

DAVID KAITUU, EDDIE PESEIKA, JESSY KAIPUIA AND JEFTER TAHUGHENA
First Defendant

AND:

CHRIS KAITU’U AND DON KAITU’U
(Representing the family of late Davi Kaitu’u)

Date of Hearing: 16 April 2021
Date of Ruling: 12 July 2021

Ms S. Kabau for the Claimant
No one for the 1^st and 2^nd Defendants but submissions filled in time

RULING ON APPLICATION TO STRIKE OUT

Faukona, DCJ: This is an application by the Defendants to strike out the claim. The application was filed 12^th August 2020. A claim in Category A was filed on 10^th July 2020.

2. In a general reference the application was on Rule 9.75, in relation to the claim which h to the Defendants appears to be frivolous on vexatious, or discloses no reasonable cause of action or it is an abuse of process.
3. What make the claim a frivolous or vexatious proceeding base on the argument by the Defendants that the Claimant is relying on an undated agreement it make with the second Defendant which parties have executed. The second Defendant further contended that the claimant is not entitled in law or rely on and pleaded the undated Agreement, therefor e the claim should be strike out.
4. Section 3 of the Stamp Duty Act states that before affixing Solomon Islands adhesive stamps to or impressing a lie upon a document (one of which is an Agreement) a Collector must collect certain fees upon collection of the specified document.
5. Section 9 of the Act state, a document not being duly stamped is in admissible in Court. Only when it is stamped and a Collector recover any duty on penalty is good and can be pleaded or given in evidence or admitted to be good, useful or available in law or equity. In fact Sections 3 and 9 featured a mandatory requirement for such Agreement be stamped.
6. The Claimant has paid immediately after the execution of the Agreement but it was paid one year and six months late. In fact it was paid about two months after the claim was filed.
7. In the case of Austree Enterprises Pty Ltd V Guo^[1], the Court of Appeal stated in paragraph 28;
   • He did refer to Spirit Haus Ltd V Marshall [2004] PNGC 166 but there the legislation provided that the Court accept the document once appropriate duty and penalty were paid. Such a provision is common is such legislation in many other jurisdictions but it not present in CAP 126 (stamp Duties Act).
8. Likely the above paragraph would have been cured by the case of Reef pacific (Sydney) Pty Ltd V Reef Pacific trading Ltd^[2], in which His Lordship Justice Palmer by then state in there is time limit as to when such document be stamped. All that is provided is a penalty clause for late stamping after two months. So if a document is stamped 2 year later that does not make it less admissible, good, useful or available in law, as if it had been stamped within two months of the execution thereof.
9. His Lordship concluded by saying it was a technical defect which can be corrected with immediate effect. However the Austree case concluded y sitting that S.9 prevented the agreement for being pleaded. Where proceedings in Solomon Islands are founded on an instrument it must be stamped with the appropriate duty before commencement of such proceeding.
10. In conclusion though we have a provision S.20 provided that the court could accept the document once appropriate duty and penalty were paid, even after two months of execution of the Agreement.
11. That privilege had been limited by the Austree Case, that payment of appropriate duty and penalty must be done before filing or commencement of the proceedings there it follows the mandatory provision of s.9 require to dismiss or strike out the claim, and I do likewise, and grant costs to the 1^st Defendant.
12. The Claimant had paid the appropriate fees and perhaps penalty and the Agreement was therefore stamped on 1st September 2020, 2 months after filing of this proceedings, therefore follows the mandatory provision of Section 9 require to dismiss or strike out the claim, and I do likewise, and grant cost to the 1st Defendant.

Orders:

1. Claim filed on 10^th July 2020 is hereby struck out.
2. Order that the Claimant and the 2^nd Defendants to enter into a new Agreement in respect of trespass and damages caused by the Claimant with Tepogima customary land in Rennell Island.
3. Order that assessment be carried out to assess the extent of trespass and damages caused by the Claimant with Tepogima customary land, which shall be taken into account in the new Agreement under order 2 above.

The Courts.

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^[1] [2021] SBCA 19: SICOA CAC 7 of 2012 92 November 2012).
^[2] [1994], SBHC 91, HCSI – CC 246 of 1991.