Consent judgment variation requires fresh action, not application; stay of execution refused due to lack of hardship grounds.

[*308] 1979 August 23

(FR. NICOLAIDES, D.J. )

IN THE DISTRICT COURT OF NICOSIA

Katina Elia Barberi,

Plaintiff,

v.

Marianna Christophorou Papadopoullou,

Defendant.

(Action No. 4401/78).

Practice - Judgment - Consent judgment - Variation - Only possible by institution of a fresh action - And not by an application.

Judgment - Consent judgment - Setting aside - Principles applicable.

Stay of execution - Writ of possession - Grounds upon which stay of execution may be granted - Question of hardship not one of the considerations - Order 40 rule 11 of the Civil Procedure Rules - Section 32 of the Courts of Justice Law, 1960, section 9 of the Civil Procedure Law, Cap. 6 and rule 7(b) of Order 40 of the Civil Procedure Rules not applicable.

D. Demetriades, for the Respondent.

Applicant present in person.

RULING

The following ruling was delivered by:-

FR. NICOLAIDES, D.J.:- This is an application [*309] by which the applicant prays for an order postponing or amending the order of eviction against the applicantdefendant until the trial and completion of the present application.

The application is based on 0.40 r. 7(b) and r.11, on ss. 31 and 32(2) and (3) of the Courts of Justice Law 14/60 and on s. 9 of the Civil Procedure Law, Cap. 6.

Although the said prayer is very badly drafter, there is not the slightest doubt that what the applicant is actually praying for is the suspension or amendment of the said order of eviction not only until the trial of the present application but for a longer period.

Before dealing with the points involved, I feel that it is necessary to go into the history of the proceedings.

The present action was filed on the 4th of November, 1978, and finally on 12.3.79 the following judgment was issued by consent:-

"This Court DOTH ORDER AND ADJUDGE that the Defendant and her family do deliver to the plaintiff vacant possession of the premises, i.e. two houses, at building site No. 2260, plot 1862, Sheet/Plan XXI/62.E.1, Block ’N’, at Strovolos, Nicosia the whole, on 15.7.79. "

“No order as to costs”.

The cause of action was a contract of sale [*310] dated 3.11.77 and the plaintiff-respondent in the present application - was praying for specific performance of the said contract of sale.

On 25.7.79 the Court granted leave to the plaintiff for the issue of a writ of possession and on 27.7.79, upon an ex-parte application by the applicantdefendant, the Court again ordered that the eviction from the ground floor of the subject premises be stayed until the final determination of an application by summons.

The present application was filed on

27.7.79 and was fixed for hearing on 16.8.79. On that date an adjournment was applied for, because counsel for the applicant was not present in Court. On granting the adjournment, the Court stressed that it should be understood that no further adjournment would be granted on the same grounds.

On 18.8.79, when the application was set down for hearing, another lawyer appeared for the applicant and applied for an adjournment. The application for adjournment was refused and the hearing proceeded in the absence of counsel of the applicant, as after the refusal of the application for adjournment, he asked for leave to withdraw.

In the affidavit accompanying the present application the husband of the applicant stated that he knows all the facts of the present case and that in fact he made all the negotiations for the sale of the twostorey building which is the subject-matter of the present proceedings. [*311]

The essence of the said affidavit is that the applicant’s husband is building a house for the purpose of delivering vacant possession of the premises to the respondent and that great hardship will be caused to the applicant if the eviction order is not stayed.

In the same affidavit it is alleged that the applicant's husband is paying £50.- per month rent.

In the affidavit in support of the opposition filed by the respondent it is stated that the applicantdefendant and/or her husband alleged in Court that the building under construction, in which they intended to move, would be ready before the 15th July, 1979. The respondent further states that the applicant received from her the sum of £28,000.- plus interest and that the applicant and her husband, who is a building contractor, could and should find other suitable accommodation for their family.

The facts being as above, I will now deal with the legal aspect.

I have gone through the Law applicable in the matter very carefully. As I stated before, the application is based on ss. 31 and 32 of the Courts of Justice Law, 14/6O. From a mere reading of s. 32 of the said Law, it is obvious that the said section refers to interlocutory orders and not to applications after judgment. I find myself unable to agree that the said section empowers the Court to stay the execution of a final judgment. [*312]

The same applies to s. 9 of the Civil Procedure Law, Cap. 6, which deals with matters completely irrelevant with the present application. It is not even necessary to indicate that s. 9 of Cap. 6 deals with applications made without notice, i.e. ex-parte applications and not with applications by summons as the present one.

Rule 7(b) of 0.40 clearly and

specifically applies to any sum of money or any costs payable under a judgment or order and the said rule empowers the

Court to stay execution of a judgment at or after the time of giving judgment. It is again obvious that the said rule is not applicable in the present case as the relief given by the judgment in question against the applicant is not of a monetary nature.

Consequently the only rule applicable to the present application is 0,40 r.11 which reads as follows:-

"Any party against whom judgment has been given or an order made may apply to the Court or a Judge for a stay of execution or other relief against such judgment upon the ground of facts which have arisen too late to be pleaded; and the Court or Judge may give such relief and upon such terms as may be just".

Except for the stay of execution the applicant prays for the Variation of the consent judgment.

I shall deal first with the variation or setting aside of a consent judgment.[*313]

A judgment given or an order made by consent may be set aside on any ground which would invalidate a compromise not contained in a judgment or order in a fresh action brought for the purpose.- (Wilding v. Sanderson, 66 L.J. Ch. 684).

In Halsbury’s Laws of England, 3rd ed., vol.22, paragraph 1672, at p. 792, we read under the heading "Consent Judgment":-

"Compromises have been set aside on the ground that the agreement was illegal as against public policy or was obtained by fraud or misrepresentation, or non-disclosure of a material fact which there was an obligation to disclose, or by duress, or was concluded under a mutual mistake of fact, ignorance of a material fact or without authority.

Unless all the parties agree, a consent order, when entered, can only be set aside by a fresh action, and an application cannot be made to the court of first instance in the original action to set aside the judgment or order, except, apparently, in the case of an interlocutory order; nor can it be done by way of appeal".

(See Emeris v. Woodward, 59 L.J. Ch. 230; Ainsworth v. Wilding, 65 L.J. Ch. 432; Mullins v. Howell, 48 L.J.Ch.679; Re Elstein’s Affairs, (1945) 1 All E.R. 272, C.A.).

In the case of Dietz v. Lenning Chemicals Ltd., (1966) 2 All E.R. 962, Lord Denning, M.R., said:- [*314]

"The law is settled by a series of case, particularly Holt v. Jesse, (1876) 3 Ch. D.177, and Harvey v. Groydon Union Rural Sanitary Authority, (1884) 26 Ch. D. 249. They show that if, before a consent order is drawn up, it appears that the consent was given under a misapprehension, or from a misstatement or want of materials, then the party can come to the Court and ask that it be not drawn up. Of course, he cannot come without good reason. If he seeks arbitrarily to get out of it, the Court will not listen to him; but, if he has any good reason, then he can come and ask that it should not be made an order of the Court, and that it be set aside. "

In the case of Doudou Mustafa Matsouri v. Duriye Ahmet Rustem, (1973) 1 C.L.R, 24, Triantafyllides, P., cited with approval the following extract from the judgment of Watkins, J., in the case of Marsden v. Marsden, (1972) 2 All E.R. 1162:-

"With regard to the circumstances in which the Court should interfere to set aside an order based on a compromise, I have been referred to a number of authorities. They all show that the Court should view such applications as this with extreme caution and that a Court will not grant such an application except in a case which calls clearly for interference with the order made. It is a [*315] discretionary remedy to be exercised with care and with regard to the injustice or otherwise of allowing an order to stand".

In Orphanides v. Michaelides,

(1968) 1 C.L.R. 295, it is stated:-

"Therefore, once, in Cyprus, a judgment has been delivered, signed and filed, there can be no possibility for the Court which has delivered it to rehear argument and to change it, or set it aside, except, of course, to the extent to which it has, always, been possible to correct an error in a judgment under the provisions of Order 25, rule 6, and under the inherent jurisdiction of the Court".

Regarding the inherent jurisdiction of the Court I am of the opinion that such Inherent powers, when the Law specifically lays down the principles upon which it may act, cannot be exercised.

A judgment by consent is binding until set aside and acts as an estoppel. (See Kinch v. Walcott, 98 L.J. P.C. 129;Charris Georghallides v. Christofis Theodoulou, 1962 .C.L.R. 115).

Lord Blanesburgh delivering the judgment of their Lordships in Kinch v. Walcott (supra):-

"First of all their Lordships are clear that [*316] “in relation to this plea of estoppel it is of no advantage to the appellant that the order in the libel action which is said to raise it was a consent order. For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal. A party bound by a consent order, as was tersely observed by Byrne, J., in Wilding v. Sanderson, (1897) 2 Ch. 534, 544, 'must, when once it has been completed, obey it, unless and until he can get it set aside in proceedings duly constituted for the purpose'. In other words, the only difference in this respect between an order made by consent and one not so made is that the first stands unless and until it is discharged by mutual agreement or is set aside by another order of the Court; the second stands unless and until it is discharged on appeal. And this simple consideration supplies at once the answer to this appeal."

The above extract was cited with approval by Hadjianastassiou, J., in the case of Andreas Christou Chilides v. Elias Danos, (1977)

6 J.S.C. 1122 .

From all the above authorities it is more than obvious that the variation of a consent judgment is only possible by the institution of a fresh action and not by [*317] an application as in the present case.

Furthermore for the variation of such a consent judgment circumstances, such as fraud, misrepresentation, mistake, undue influence, duress, or ignorance of a material fact, must exist. From the evidence before me, namely the affidavits filed in support, no such circumstances exist .

Therefore, I find no reason to vary the judgment, nor do I have the authority to do so dealing with an application.

Furthermore, even if such circumstances as above existed and the applicant was justified or entitled to pray for the variation of the consent judgment, she sought the remedy too late.

The Court may refuse to set aside a compromise when the party seeking to set it aside is guilty of delay in questioning it. (See Halsbury's Laws of England, 3rd ed., vol. 22, para.1672).

In the present case the consent judgment was issued on 12.3.79 and the application to set it aside was filed some 4½ months later which in my opinion was too late.

I will now proceed to examine whether the applicant is entitled to stay of execution or suspension of the execution of the writ of possession. [*318]

Order 40 r. 11 provides that stay of execution may be applied for upon the ground of facts which have arisen too late to be pleaded. The facts set forward in the affidavit sworn by the applicant's husband in support of the application show no reason for the granting of a stay of execution as the said affidavit does not disclose any facts which have arisen too late to be pleaded.

Referring to the question of hardship which would be caused to the applicant by the refusal of the order for stay, it is my opinion that the hardship of the parties is not one of the consideration in cases as the

above. The present case is not a case under the Rent Control Law in which hardship is of great importance. The Court has no discretion to adjudicate

on the issue of hardship in cases which are tried at common law as the applicant and the respondent by entering consent judgment made an agreement.

Furthermore if exercising my discretion, I would grant the stay of execution applied for, I would actually vary the agreement which was concluded between the parties in relation to the settlement of the action in which the consent judgment was issued. If a stay of execution was given, this would amount to an interference in the objects and considerations of the parties involved. (See Moussoulides Trading Co. & Others v. Kypronics of Nicosia, (1971) 1 C.L.R. 209).

Having in mind all the above and all other [*319] considerations, I have decided in exercising my judicial discretion to refuse the present application. In my view, not only there are no such circumstances as to justify the applicant for a variation or a postponement of the execution of the writ of possession but, on the contrary, the circumstances of the present case clearly indicate to the opposite effect.

Accordingly the application is dismissed with costs against the applicant.

Application dismissed

with costs.