Court dismisses injunction application seeking to enforce a lease contract the plaintiff herself terminated.

[*577] 1985 June 14

(ARTEMIDES, P.D.C.)

IN THE DISTRICT COURT OF NICOSIA

Myrofora HadjiSavva,

Plaintiff,

v.

PAPAGALO NIGHT CLUB-QUALITY ENTERTAINMENT LTD., and Others,

Defendants.

(Application No. 3143/85).

Injunctions - Interlocutory injunction – Order directing defendants to abide by the provisions of a contract of lease, which the applicant had herself terminated - Ground for discharging the order.

Injunctions - Interlocutory injunctions - principles governing their issuance - Review of authorities.

St. Charalambous, for Applicant-Plaintiff.

K. Saveriades, for Respondents-Defendants.

RULING

The following ruling was delivered by:-

ARTEMIDES, P.D.C.:- The application of the plaintiff for restrictive and mandatory injunctions will have to be dismissed and consequently the interim injunctions granted on an ex parte application on 8.4.85 are discharged. The reasons for my decision are based on [*578] a simple point of law, which was not relied upon by either side during the hearing of this application. In fact, it is the result of my research when preparing this ruling. The point of law is this: The plaintiff’s prayer and the statement of claim indorsed on the writ is for an order of ejectment and delivery of vacant possession to the plaintiff by the defendant 1 company of her property situate at Psaron Street, Engomi, Nicosia. The contract of lease was terminated by the plaintiff on 20.2.1985, after a series of alleged flagrant breaches of its stipulations by the defendants, who are consequently considered by her as tresspasers as from 25.2.1985 (See para.9 of the statement of claim). Now, the plaintiff by the present application for injunctions seeks an order of the Court directing the defendants to abide by the provisions of the contract of lease, i.e. the agreement terminated by herself. Put in a nutshell the plaintiff seeks injunctions which cannot be based on a right arising from the agreement which is no longer in existence. On this principle of law there is clear authority. See: Halsbury’s Laws of England, 4th Ed., Vol. 24, para. 994, note 2. This note summarizes the principle enunciated in the cases referred to and it is as follows:

“The issue of a writ to recover possession would operate to determine the lease and so preclude the landlord from claiming an [*579] injunction on the basis that the covenant was still subsisting.

One of the cases referred to in the note is that of Calabar Properties v. Seagull Autos Ltd. (1968) 1 ALL E.R. 1. In that case, though the principle was approved, it was not applied because the facts in the case were different. This difference is important because it brings it within the nature of the present case. The injunctions were granted because they were expressly sought in the writ, without prejudice to the claim for possession and in the nature of an alternative claim. I shall cite a rather long passage from this judgment (p.3):

“It is said by the defendants that in these circumstances the plaintiffs, having claimed possession, are not at the same time entitled to claim relief on the footing that the lease is still subsisting. Reliance is placed on a decision of Younger, J., in Wheeler v. Keeble (1914) Ltd. ((1920) 1 Ch. 57). In that case the plaintiffs issued a writ in which they claimed possession of property as against the defendants, damages for breach of covenants contained in the lease and an interim injunction and costs. It does not appear from the report what the nature of the interim injunction was. [*580] It was held that the issue of the writ to recover possession was an unequivocal determination of the lease on the part of the plaintiffs and that it was not open to them to move for an injunction on the footing that the lease was still subsisting and, accordingly, the motion for interlocutory relief by way of injunction was dismissed. Younger, J., in the course of h is judgment said (p. 62):

‘In my opinion, there can be no question that the writ on its true construction amounts to an unqualified election on the part of the plaintiffs to determine the lease. All the relief claimed by the writ subsequent to the claim for possession is subsidiary to that relief and claim for possession’.

He referred to various authorities includes Jones v. Carter ((1846) 15 M. & W. 718) in which the judgment of the court was delivered by Parke, B., and Birch v. Wright ((1775-1802) ALL E.R. Rep. 41), a decision of Ashurst, J. Later he said (pp. 63, 64):

‘In my opinion therefore the plaintiffs are not entitled to obtain the injunction which they ask by simply referring to the terms of the lease. If they are entitled [*581] to an injunction at all it must be apart from the terms of the lease and solely in respect of their own interest in the premises and of some irreparable injury which may be sustained by them through the acts of the defendants on the plaintiffs’ own property in case those acts are allowed to continue’.

That decision proceeded on the view of the judge that the writ amounted to an unequivocal election on the part of the plaintiffs to determine the lease. He took that view because he considered that the claim indorsed on the writ was such and that all the relief claimed subsequent to the claim for possession was subsidiary to that claim”.

It emerges from the above that the plaintiff-applicant would be entitled to the injunctions if she had claimed specific performance of the contract of lease, see again Halsbury’s Laws of England, 4th Ed., Vol. 24, para. 987, or if she had added to the writ other causes of action arising outside the terms of the contract as an alternative claim, i.e. nuisance, which she has not done.

In view, however, of the fact that I have already prepared my ruling on the submissions put by either side and in case I am held wrong in my above decision, I proceed to give my reasons why I would grant the [*582] the injunctions prayed for if the application did not fatally suffer from the flow already dealt with.

The plaintiff is the owner of the ground floor of a house which was let to defendant 1 company to be used as a cocktail lounge bar. On top of these premises the plaintiff has her home with her husband and family. Defendants 2, 3 and 4 have signed as guarantors to the contract of lease. In the elaborate statement of claim on the specially indorsed writ particulars of the breaches of contract are given for which the plaintiff seeks to recover possession of her property having terminated the agreement. I shall refer to those alleged breaches which are basically connected with the application under consideration. Clause 5 of the agreement provides that the premises would be used as a lounge cocktail bar or cafeteria but no meals would be served. Clause 7 makes provision that the tenants would not do or allow anything to be done in the premises which would cause nuisance or would be detrimental to the rights of the owner or the other proprietors of neighbouring shops or houses. There is a provision in this clause pursuant to which the tenants may use music in the premises which, however, should be so low and soft that it would be audible in the premises of the lounge only. This provision is agreed to be an essential [*583] one and it is a contravention of its terms if the music is heard even to the softest tone on the upper floor, where the house of the plaintiff is. Clause 7 in its entirety is also made an essential provision of the agreement. Clause 9 enjoins the tenants to abide by the laws and regulations in the carrying of their business in the premises as a luxury loung bar or cafeteria. This term has also been agreed to be a basic one and its breach would entitle the owner to terminate the contract of tenancy and seek the ejectment of the tenant.

It is the allegation of the plaintiff that all the above provisions in the aforesaid contract and others that do not concern the present proceedings, have been contravened by defendant 1 and the plaintiff has therefore terminated the tenancy agreement. On 5.4.1985 the plaintiff, on an ex parte application, applied for interim injunctions prohibiting the defendants, their employees, or representatives from:

(a) Playing music in the premises which is audible in the house of the plaintiff.

(b) Cooking and serving dishes to their clientele, and

(c) Leaving open the premises beyond the hours allowed by the law and regulations applied to such establishments.[*584]

The injunctions sought were granted by the Court on 8.4.1985. The application was made returnable on 2.5.1985 when the defendants opposed its being made absolute. The hearing took place on 27.5.1985.

The application is supported by an affidavit sworn by Chrysostomos Malekou, Director of defendant 1 company, who is also defendant 4 in his personal capacity. At the hearing of the application both the affiants were cross-examined by the other side.

I shall go through the evidence briefly and proceed to make my findings bearing in mind the nature of the proceedings. The findings to which I shall arrive at will be made for the purposes of this application only and certainly can have no bearing on the main issue in the cause which will be decided at the hearing of the action. The application is founded on three basic alleged breaches of the contract of lease, the following:

(a) The music is transmitted on such volume that it constitutes a nuisance to the plaintiff and her family, contrary to the express provision of the tenancy agreement referred to earlier on.

(b) The cooking and serving of meals, again contrary to the express provisions of the tenancy agreement, cause also great nuisance and inconvenience.[*585]

(c) Persistent and repeated violations of the regulations regarding the use of loud speakers for the transmission of music and leaving the premises open beyond the hours allowed by the law.

I shall refer to the evidence regarding each one of the above contraventions in the above order. Chrysostomos Malekou admitted that the plaintiff and her husband had complained a number of times to him that the music played in the bar was causing a nuisance to them and this not only because of its volume but also that it continued well after

1.00 in the morning. On one occasion the husband of the plaintiff had to go down in his pyjamas after midnight in order to complain that it was impossible for his family to get any sleep. Malekou agreed that they had installed in the bar four loud-speakers but were, as he has put it, of household use and their volume was limited to 35 vat. He admitted, however, that they were affixed just

1 foot from the ceiling and at the beginning three of the four loud-speakers were beneath the bedrooms of the plaintiff’s house. He further admitted that they had no licence for the use of the loud-speakers and their application for a permit to the authorities was dismissed because the premises are situate within a residential area. Furthermore, the witness admitted that they still use the loud-speakers although they have no permit to do so. They were reported for this by the police [*586] and they had also about 20 reports for leaving open their establishment beyond the hours allowed by the regulations. A few cases have been brought before the Court and others are pending against them. Opening a parenthesis here Mr. Saveriades, counsel for the defendants, submitted that since the plaintiff was never reported by the police she can have no complain. I would disagree with this position because:

(a) The owner of the premises is liable pursuant to the law and the police may bring charges against her for the same contravention of the regulations. The fact that they have not done it until now does not mean that they will not do it in future, and

(b) The plaintiff has signed a contract with the defendants and there is express provision in this respect, to which I need not refer again, and she is entitled to see that the covenant is adhered to by the defendants.

With reference to the allegation that the defendants, contrary to the express provision in the agreement, cook and serve meals, Mr. Malekou said that in his opinion they do not contravene this provision, because and since the premises were let as cafeteria or cocktail lounge bar, snacks are served in such establishments known as cocktails. Having [*587] heard the evidence of the witness he left me with the impression that he ascribes to the word “meal” the limited meaning of cooked food in casseroles and that anything else otherwise prepared it is not a meal. The menu of the bar has been put in as exhibit and certainly one cannot agree that what is included in this menu are snacks usually served in a bar. A “pepper steak” or “steak Paraskevas” or “chicken kiev” cooked in the elaborate way described in the menu, are not snacks. The defendants have also applied to KOT and were granted the licence of a restaurant. One may assume that KOT has issued that kind of licence on their own application on which they have described their establishment as a restaurant. This menu leaves no doubt that the premises are run as a restaurant and not as a cocktail bar. I leave aside in this respect the evidence of the plaintiff herself, who said that she visited the kitchen and saw a number of casseroles containing food cooked as stew.

The third point has already been dealt with. There is an admission by Mr. Malekou that they have no licence for the use of the loud speakers and they have been repeatedly reported by the police for working the restaurant beyond the hours allowed by the regulations.

Both counsel have addressed me on the law applicable in the matter and have referred me between them to all the important cases decided on this [*588] subject. I, myself, will be rather brief. The prerequisites for the granting of an interim injunction have now been crystallized in a series of decisions of our Supreme Court, in which s. 32 of Law 14/60 has been considered together with the Common Law principles

applying on the interpretation and application of the said provisions. See: Geo. M. Hadjikyriacos Co. Ltd. v. United

Biscuits (U.K.) Ltd. (1979) 1 C.L.R. 689; M. & M. Transport Co. Ltd. v. Eteria Astikon Leoforion Lemessou Ltd.

(1981) 1 C.L.R. 605; Odysseos v. A. Pieris Estates Ltd. (1982) 1 C.L.R. 557; and the latest case of Inter Depo Ltd. v. Papavassi1iou Ltd. (1984) 1 C.L.R. 769. These prerequisites are:

(a) A serious question to be tried at the hearing of the case.

(b) A probability that the plaintiff is entitled to relief.

(c) That unless the interlocutory injunction is granted it will be difficult or impossible to do complete justice at a later stage, and

(d) How the balance of convenience is moved to either side.

With regard to the prerequisite of probability of success at the trial the judgment of Megarry, J.,as he then was, in the case of Hounslow v. Twickenham Garden (1970) 3 ALL E.R. 326, is very helpful. On [*589] the issue of balance of convenience the case of Texaco Ltd. v. Mulberry Filling Station Ltd. (1972) 1 ALL E.R. 513, will be found of assistance, and in view of the fact that the status quo principle has also been cited by Mr. Saveriades this is dealt with in this case at p. 529, where it was held that the maintenance of the status quo means in general the maintenance of the contemporary situation including what has resulted from past violations of the plaintiff’s prima facie right but excluding any repetition of the violations. Ungoed-Thomas, J., said the following at p.529:

“The maintenance of the status quo would thus, in case of, say, a building involving strong prima facie trespass, mean leaving, as it is, so much as has been built but not permitting any repetition of the prima facie trespass by building more, and it would in our case mean no more repetition of the strong prima facie breach of covenant which has been established. The maintenance of such a situation recognises the limitation arising from the prima facie character of the right established on the one hand and the objections to the court countenancing future breaches of such right on the other hand”. [*590]

The case of Karydas Taxi Co. Ltd. v. Komodikis (1975) 1 C.L.R., p.321, deals also with the same subject.

I turn finally to the case of Hampstead and Suburban Properties Ltd. v. Diomedous (1968) 3 ALL E.R., 545, which counsel for the applicantplaintiff has made it his stronger point. In my judgment it would indeed be if the plaintiff had framed her prayers in the writ in the same way it was done in the Hampstead case. The facts in the case and the principles applied by Megarry J., as he then was, would have been a complete answer to the defendants-respondents allegations and lend complete support to the case of the applicant. In that case the plaintiffs complained for nuisance caused by loud music. The playing of music was contrary to the covenant signed by the parties. The learned judge held that the plaintiff was entitled to interim injunctions, since there was a clear contravention of the provisions of the covenant pending the final determination of the case. He had this to say at p.550:-

“Where there is a plain and uncontested breach of a clear covenant not to do a particular thing, and the covenantor promptly begins to do what he has promised not to do, then in the absence of special circumstances it seems to me that the sooner [*591] he is compelled to keep his promise the better. In such a case I do not think that the enforceability of the defendant’s obligation falls into two stages, so that between the issue of the writ and the trial the defendant will be enjoined only if that is dictated by the balance of convenience and so on and not until the trial will Lord Cairns’ statement come into its own. Indeed, Lord Cairns’ express reference to ‘the balance of convenience or inconvenience’ suggests that he had not forgotten interlocutory injunctions. I see no reason for allowing a covenantor who stands in clear breach of an express prohibition to have a holiday from the enforcement of his obligations until the trial. It may be that there is no direct authority on this point; certainly none has been cited. If so, it is high time that there was such authority; and now there is”.

As to the balance of convenience Megarry, J., said the following at p. 551:

“Finally, there is the balance of convenience. To say that the inconvenience to the plaintiffs is ‘nil1, and that to [*592] them the case is ‘essentially trivial’, seems to me as much an exaggeration as to say that the loss to the defendant will be ‘incalculable’. I have already dealt with the injury to the plaintiffs, and I need say no more about it. The defendant’s claim is, in essence, that he will suffer an ‘incalculable loss’ if he is not permitted to continue his plain breach of the obligations which he so recently entered into and voluntarily undertook when he became an assignee of the lease. Stripped of the persuasions of counsel for the defendant’s advocacy, the proposition is: ‘I am making handsome profits by doing what I covenanted and undertook not to do: therefore it would be wrong for the court to stop me’. I can conceive of few propositions calculated to appeal less to equity”.

And further down:

“... But it seems to me that it is of some relevance to consider whether it is more important for the plaintiff’s tenants to have the relative peace and quiet in their homes to which they have been accustomed or for the defendant’s [*593] customers to have the pleasure of music while they eat, played at high volume. When this comparison is made, it seems to me that it is the home rather than the meal table which must prevail. A home in which sleep is possible is a necessity, whereas loud music as an accompaniment to an evening meal is, for those who enjoy it, relatively a luxury. If, of course, the two can peacefully co-exist, so much the better; but if there is irreconcilable conflict, as there is at present in this case, I think it is the home that should be preferred”.

The applicant in these proceedings would have been successful if she claimed the injunctions prayed in this interim application, in the action as it was done in the Hampstead case (see page 548, letters E & F of the report).

I have referred to the evidence earlier on and I need not repeat what I have already said. For the purposes of this application I find that the plaintiff-applicant has fulfilled her duty regarding the onus of proof lying on her and has satisfied fully the prerequisites which entitled her to the interim injunction.[*594]

For the reasons, however, put forward at the beginning of this ruling, the injunctions ordered are hereby discharged.

Injunction discharged.