Cyprus Supreme Court dismisses appeal for insufficient defense facts in conditional leave to defend case.

[*1084] 1966 October 14

(JOSEPHIDES, STAVRINIDES, JJ., HJIANASTASSIOU, AG. J.).

APPELLATE JURISDICTION

Kypros S. Kyprianides,

Appellant-Defendant,

v.

Symeon Ioannou,

Respondent-Plaintiff,

(Civil Appeal No. 4591).

Court of Appeal - Interlocutory appeal - Summary judgment - Leave to defend - Conditional leave to defend – Discretion - Grounds on which Court of Appeal may interfere with conditions imposed by trial Judge in exercise of his discretion under Order 18 of the Civil Procedure Rules.

Practice - Interlocutory appeal - Summary judgment - Conditional leave to defend - Interference with trial Judge's discretion - See under "Court of Appeal" above.

Judgment — Summary judgment - Conditional leave to defend - Defendant's affidavit must give sufficient facts and particulars to show that there is a bona fide defence - Order 18, rules 1, 2 and 6.

Discretion - Summary judgment - See under "Court of Appeal" above.

A. Georgiades, for Appellant.

J. Mavronicolas with D. Theocharides, for Respondent.

JUDGMENT

The Judgment of the Court was delivered by:-

JOSEPHIDES, J. : This is an appeal from the order of a District Judge granting conditional leave to the appellant defendant to defend the case. The order of the learned Judge was as follows:

"Leave to defend granted on condition that defendant shall, within

20 days, deposit the amount of the claim, plus £18 costs, in Court". [*1085]

The plaintiff's claim was stated to be based on a bond in customary form for the sum of £105 plus interest. The writ of summons was a specially indorsed writ, under Order 2, rule 6.

After service of the writ on the defendant, which was substituted service on his wife as he was absent from Cyprus, appearance was entered on his behalf and subsequently the plaintiff applied for summary judgment under the provisions of Order 18, rules 1 and 2. The application for summary judgment was supported by an affidavit giving particulars of the claim and stating that the bond had been examined by defendant's advocate and copy thereof handed to him. In fact, the bond has been inspected by us, and it would appear that it is a bond in customary form within the provisions of section 80 of the Contract Law, Cap. 149·

Defendant's counsel filed an opposition to the plaintiff's application for summary judgment and in support thereof he relied on the following affidavit sworn by him:

"1. I am the Defendant's counsel retained in the above case.

2. My instructions are that the alleged bond is null and void and not recoverable in law as it arises from an illegal transaction.

3. There is no valuable or lawful consideration in respect of the alleged bond and represents money paid on gambling.

4. In the circumstances my client has a good defence which goes to the whole of the alleged plaintiff's claim.

5. My client at present is outside Cyprus". [*1086]

The learned Judge, after hearing counsel, granted conditional leave to defend as quoted earlier in this Judgment. He gave no reasons for his decision.

The appellant’s main argument before us was that by his affidavit he raised a defence of illegality for which the Judge ought to have granted him unconditional leave to defend. The material part of rule 1(a) of Order 18 provides that summary judgment for the plaintiff may be given on his application "unless the defendant shall satisfy the Court that he has a good defence to the action on the merits, or disclose such facts as may he deemed sufficient to entitle him to defend". And rule 6 provides that leave to defend “may be given” unconditionally or subject to terms.

It will thus he seen that the burden is on the defendant to satisfy the Court that he has a good defence, and in deciding this matter the Judge has to exercise his discretion. In this case the Judge, having exercised his discretion after hearing counsel and considering the material in the form of affidavits put before him, granted conditional leave to defend. It is well settled that where a Judge has exercised his discretion under Order 18 and imposed conditions as a term of giving a defendant leave to defend, the Court of Appeal will not interfere with the exercise of his discretion unless there has been some error of principle or misapprehension of fact on his part, or unless he has given undue weight to a particular aspect of the facts (Gordon v. Cradock (1963) 2 All E. R. 121).

The appellant's point is that on the affidavit filed by him the trial Judge should have granted him unconditional [*1087] leave. We think that this appeal may be decided on a very short point, that is, that the defendant's affidavit does not give sufficient facts to show that there is a good defence, nor does it disclose such facts as may he deemed sufficient to entitle him to defend.

As decided in a number of English cases on the corresponding English Rules (R.S.C. Order 14), sufficient facts and particulars must be given to show that there is a bona fide defence. A mere general denial that the defendant is indebted will not suffice (Wallingford v. Mutual Society (1880),

5 App. Cas., 685, at page 704). The defendant's affidavit must "condescend upon particulars", and should, as far as possible, deal specifically with the plaintiff's claim and affidavit, and state clearly and concisely what the defence is, and what facts are relied upon as supporting it.

In this particular case the affidavit sworn by counsel for the defendant simply states that his "instructions are that the alleged bond is null and void and not recoverable in law as it arises from an illegal transaction". No facts or particulars of the illegality are given. In the following paragraph counsel states "there is no valuable or lawful consideration in respect of the alleged bond and represents money paid on gambling". There again no specific facts are given to show that there is a bona fide defence. For these reasons the appeal is dismissed.

JOSEPHIDES, J.: Are you claiming costs?

Mr. Mavronicolas: Yes, Your Honour.

JOSEPHIDES. J.: The appeal is dismissed with costs. As the conditions imposed by the learned Judge on the [*1088] 1st July, 1966, have not been complied with, we allow the defendant a further 15 days from today to comply with those conditions. If the defendant shall fail to comply, the plaintiff may sign final Judgment against him for the amount indorsed on the writ with interest and costs. Order accordingly.

Appeal dismissed with costs.

Order allowing defendant

a further 15 days to comply

with conditions imposed by

trial Judge.