Timothy Lim Kok Chuan v Simon Goh Say Beng and Madam Tong So Chin (2004) N2753

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2004) N2753
• Date: 16 August 2004
• Year: 2004

Full Title: Timothy Lim Kok Chuan v Simon Goh Say Beng and Madam Tong So Chin (2004) N2753

National Court: Gavara–Nanu J

Judgment Delivered: 16 August 2004

1 Practice and Procedure—National Court Rules, O10 r21—Circumstances in which leave may be granted for any questions or issues in the proceedings to be tried separately from other questions or issues—Criteria for granting such leave.

2 CBS Productions Pty Ltd v O'Neill [1985] 1 NSWLR 601, Coenen v Payne [1974] 2 All ER 1109, Everett v Ribbands [1952] 1 KB 112, Carl Zeiss Stiftung v Herbert Smith & Co [1969] 1 Ch 93, Dunstan v Simmie & Co Pty Ltd [1978] VR 669 referred to

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Gavara–Nanu J: The defendants have by a Notice of Motion filed on 5 August 2004, applied for leave to have certain questions determined separately. The questions principally relate to the issue of whether the contract pleaded in the Statement of Claim is legal.

The questions raised are:

1. Whether the plaintiff is estopped from calling evidence on the contract pleaded in the Statement of Claim pursuant to s19 of the Stamp Duties Act, and for failing to lodge a Statement for assessment and payment of appropriate duty as required under s48A and s48B of that Act ?

2. Alternatively, whether the purpose and effect of the plaintiff's non compliance with s48A and s48B was to avoid or evade paying stamp duty, thus thereby rendering the contract illegal and therefore null and void pursuant to s92 of the Act?

3. Whether the contract or the understanding allegedly entered into between the plaintiff and the defendants, all of whom were non citizens at all material times was a foreign enterprise, and thus is unlawful and void pursuant to s41A of the Investment Promotion Act 1992?

Ordinarily, under the purported contract, the defendants are obliged to sell their business interests to the plaintiff.

The application is made pursuant to O10 r21 of the National Court Rules.

The defendants' questions also arise because no duty was paid by the plaintiff on the contract which was in breach of s5 of the Stamp Duties Act.

Mr Kua submitted that the contract is illegal because the plaintiff being a non citizen was bound by the requirements of s41A of the Investment Promotion Act 1992, to obtain a certificate to carry on business in Papua New Guinea in the nature of the matters pleaded in the Statement of Claim. The defendants argued that the plaintiff did not obtain such certificate before doing business...