Supreme Court grants transfer of road collision damages action from Nicosia to Larnaca District Court under section 61.

[*1198] 1968 October 29

(VASSILIADES, P., TRIANTAFYILIDES, JOSEPHIDES, LOIZOU, JJ.

ORIGINAL JURISDICTION

Nicolas Tsiakli,

Applicant (Plaintiff),

v.

Takis Koudounas,

Respondent (Defendant)

(Civil Application No.9/67)

Civil Procedure -- Action - Transfer of Action - Courts of Justice Law, 1960 (No. 14 of 1960), section 61 - Discretionary power of Supreme Court - Action filed in Court established in the district in which defendant resided - q Transferred to District Court in district where accident occurred.

D. Liveras, for the Applicant.

No appearance for the Respondent.

JUDGMENT

The Judgment of the Court was delivered by:

VASSILIADES, P.: This is an application for the transfer of an action from one District Court to another, made under section 61 of the Courts of Justice Law (No. 14 of 1960). [*1199]

The facts on which the application is based appear in an affidavit sworn and filed on behalf of the Applicant by his advocate. The claim in the action is for damages to property arising from a road collision, which occurred within the jurisdiction of the Court of Larnaca.

The defendant is an agricultural officer who, at the time, was stationed at Morphou. According to the affidavit filed in support, he was working partly at Morphou and partly at Nicosia. Service of the writ of summons was not effected on him until sometime later when he was traced in the district of Paphos where he was working at the time. Now, the applicant-plaintiff applies for the transfer of the action from the District Court of Nicosia where the defendant was residing at the time, to the District Court of Larnaca within the jurisdiction of which the collision occurred.

As it has been observed in the course of the argument, had the action been originally filed in the Court of the District where the accident occurred, the need for transfer would not have arisen be that as it may, however, we now have to deal with the application for transfer.

In the reported cases after the enactment of the Courts of Justice Law, 1960, the matter was first considered in Photos Photiades & Co. v. Jadranska Slobodna Plovidba (1962, Cyprus Law Reports, p. 107). There the application was for the transfer of an action from the District Court of Famagusta to the admiralty jurisdiction of the High Court It was held in that case, that section

61 of the Courts of Justice Law gave to this Court discretionary power to make the transfer, where in the circumstances of a particular case, [*1200] the Court is of the opinion that such powers should he exercised. In the Jadranska case, the application for transfer was refused. Since then, there have been several such applications. In some of them the Court exercising their discretionary power made a transfer order, in others the application was refused, depending on the circumstances of the case. (Efthymiou v. The Estate of Alexandros Christou, Application 8/67 unreported; Ahmad Al-Masri v. Derya Fishing Co., Application 4/67, unreported; Nicolas Constantinou v. Christina Petrou, (1968), 5, J.S.C. p. 585).

Coming to the case before us, we take the view that, as the cause of action arose within the jurisdiction of the District Court of Larnaca, where the applicant-plaintiff is now trying to have the action transferred, and the defendant has no objection to such transfer (according to the statement made from the Bar by Mr. Liveras) the application should be granted; and an order made for the transfer of the action accordingly. Any incidental costs to be borne by the applicant-plaintiff in any event, so that the defendant will not have to bear any costs arising from the course which the plaintiff elected to take.

We wish, however, to make it clear that, having heard no argument on the legal aspect arising in this case, where the defendant having entered - we are told - an unconditional appearance, is taking an objection to the jurisdiction as a preliminary point in his pleadings, we leave the matter open whether in such circumstances, the discretion of the Court should have been exercised, had there been an opposition. [*1201]

In the result, the application is granted; with an order under section

61 of the Courts of Justice Law,1960, for the transfer of action 447/67 from the District Court of Nicosia to the District Court of Larnaca, with all incidental expense and costs payable by the applicant-plaintiff, in any event.

Application granted.

Order for costs as

aforesaid.