Orogen Minerals Limited v David Sode, Commissioner General of Internal Revenue Commission and Collector of Stamp Duties and Mark Opur, Commissioner of Taxation (2003) N2467

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Sakora J
• Judgment Date: 26 September 2003
• Citation: (2003) N2467
• Judgment Number: N2467
• Year: 2003

Full Title: Orogen Minerals Limited v David Sode, Commissioner General of Internal Revenue Commission and Collector of Stamp Duties and Mark Opur, Commissioner of Taxation (2003) N2467

National Court: Sakora J

Judgment Delivered: 26 September 2003

N2467

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

AP 264 of 1997

AP 265 of 1997

AP 266 of 1997

AP 267 of 1997

BETWEEN

OROGEN MINERALS LIMITED

Applicant/Plaintiff

AND:

DAVID SODE,

COMMISSIONER GENERAL OF INTERNAL REVENUE

COMMISSION AND COLLECTOR OF STAMP DUTIES

1st Respondent/Defendant

AND:

MARK OPUR,

COMMISSIONER OF TAXATION

2nd Respondent/Defendant

Waigani : Sakora J

2000 : 6 October

2003 : 26 September

Practice & Procedure – Appeal – Assessment of Stamp Duty – Powers of Court – Order for repayment of duty – Judgment – Order for interest – Error or Omission – The Slip Rule – Stamp Duties Act, ss 20A, 21; Judicial Proceedings (Interest on Debts and Damages) Act, s 6; National Court Rules, O. 8, r. 59, O. 12, r 6.

J. Mileng for the Applicant.

B. Nouairi for the Respondents.

DECISION

26 September 2003

SAKORA J: The plaintiff/applicant company moved the Court upon a Notice of Motion seeking the indulgence of the Court to revisit a judgment made on 17 July 1998 and correct the terms of that judgment to include an order for the calculation of interest at the rate of 8% per annum. And the interest sought to be included in the judgment orders is to be calculated on the amount of the stamp duty that the primary judge found to have been wrongly assessed by the defendants/respondents and, thus, ordered to be repaid to the plaintiff.

This case arose from an assessment made by the defendants on 9 July 1997 that certain documents of the plaintiff were subject to duty pursuant to the Stamp Duties Act (the Act). Following that assessment, which the plaintiff objected to, and which objection was disallowed by the defendants in purported exercise of powers pursuant to provisions of the statute, the plaintiff availed itself of its right to appeal to the National Court, contesting and disputing the assessment of duty on the subject documents.

The appeal went before Justice Woods of this Court on 17 July 1998 wherein his Honour upheld the appeal, quashing the stamp duty assessed on the documents, and making the following consequential orders:

· That the defendants repay to the plaintiff the amount of the stamp duty assessed and obliged to be paid by the plaintiff; and

· That the defendants pay the plaintiff’s costs.

The Court made no order for interest. The plaintiff had not applied for such an order as part of the relief.

Issues

The history of this case and the consequent application here raise the following issues for determination. First is the issue as to whether or not interest ought to have been ordered to be calculated on the wrongly assessed duty (and paid) in respect of those documents. Only when this issue is determined in the positive will it be correct or proper to proceed to consider and determine whether or not there was or had been an error or mistake, or indeed “accidental omission” in the judgment orders without mention of interest. Both issues of course raise issues of law only for determination.

Factual Background

After the objection and its disallowance or rejection, the plaintiff filed four appeals pursuant to s 21 (1) of the Act, each appeal arising out of substantially the same factual circumstances, raising the same issues. Accordingly, these were consolidated or amalgamated and heard together by the primary judge.

From his Honour’s judgment it appears that by assessment under the statute dated 9 July 1997 the plaintiff (then appellant) was required and obliged to pay stamp duty in respect of four documents or instruments, which were:

1. Deed of Assignment between the Mineral Resources Development Corporation (MRDC), Petroleum Resources Gobe P/L; the appellant (plaintiff); and Orogen Minerals (Gobe) Pty Limited.

2. Instrument of Transfer of Petroleum Development Licence No. 4.

3. Instrument of Transfer of Pipeline Licence.

4. Instrument of Transfer of Petroleum Development Licence No. 3.

The appellant company objected in writing to the Assessments pursuant to s 20A of the Act. The provision is in the following terms:

20A. Objections against assessments.

(1) Within 30 days after the date of an assessment or an amended assessment under this Act, and on the payment of duty and penalty in conformity with the assessment, a person who is dissatisfied with the assessment may object in writing to the Collector of Stamp Duties stating in detail the grounds for the objection.

(2) The Commissioner General shall consider the objection and serve notice in writing of his decision and reasons therefore, on the person who lodged the objection.

(3) Where, as a result of an objection being allowed, in whole or in part, the amount of any duty or penalty is reduced, the Collector of Stamp Duties shall make a refund of the amount so reduced to the party to the instrument by whom or on whose behalf the duty or penalty was paid, or to his executors, administrators or assigns.

By notices dated 15 April 1997 the appellant’s objections were disallowed. These appeals were filed in accordance with s 21 (1) of the Act. Then the respondents in their Statement of the Case under s 21 gave their reasons for disallowing the objections, listing some six (6) considerations.

The issue at the assessment and subsequent objection by the appellant was whether the company and/or any of its subsidiaries were liable to pay stamp duty in respect of the Assessed Documents, they being persons declared by the Minister to be, in respect of these documents, an instrumentality of the Government. The appellant’s case, therefore, was that it had been given exemption under s 6 of the Act. Reliance for this assertion was said to have come from the Declaration by the Minister for Finance (and then Deputy Prime Minister) under s 6 of the Act, notified in National Gazette No. G 72 of 5 September 1996.

The appeal before Justice Woods was allowed, with the Court declaring that neither the appellant nor any of its subsidiaries were liable for stamp duty on the documents and made consequential orders (supra). The Certificate of Judgment on this decision was issued on 20 August 1998. In the judgment the sum of K5,515.00 was ordered to be paid by the respondents to the appellant company. The appellant was awarded its costs as well.

The Notice of Motion dated 16 May 2000 seeks the following orders for relied:

1. That the judgment of his Honour Mr Justice Woods herein dated 17 July 1998 be corrected pursuant to Order 8 Rule 59 of the National Court Rules by including interest at 8% per annum in accordance with Order 12 Rule 6 (2) of the NCR on the amount of stamp duty to be refunded for the period from the date of payment of the stamp duty to the date refund is made;

2. That the Defendants pay the costs of these proceedings; and

3. Such further and other orders as this Honourable Court deems fit.

Interest

It is the applicant’s submission that the Court on appeal from a determination of the respondents had the power to order payment of interest on the amount ordered to be repaid to the applicant as wrongly assessed stamp duty. Furthermore, it is submitted that had counsel applied to the Court then for the ordering of interest on the amount to be repaid, the Court would have considered the matter and proceeded to exercise its discretion on it. In the alternative, if the Court did not consider the question of interest, or after considering it failed to make an award on interest, then this error or omission on the part of the Court would constitute proper circumstance for availing of Order 8 Rule 59 of the National Court Rules (NCRs).

The NCRs makes specific provision for interest under Order 12 Rule 6 (2) which is in the following terms:

6. Interest

(7) Where the Court directs the entry of judgment for payment of money and makes an order for payment of interest under the Judicial Proceedings (Interest on Debts and Damages) Act, interest...