Court dismisses application to set aside default judgment due to lack of merit and suspicion of delay.

[*1410] 1972 November.22

(ANASTASSIOU, AG. D.J.)

IN THE DISTRICT COURT OF NICOSIA

Therapon Theodoulou,

Plaintiff,

v.

Andreas Pilavakis,

Defendant.

(Action No. 2624/70).

Civil Procedure - Practice - Judgment - Obtained in default of appearance - Setting aside of - Civil Procedure Rules Order 17 r.10 - Discretion of the Court - Primary consideration is whether the party applying for the judgment to be set aside has merits to which the Court should pay heed.

Gl. Raphael, for the Applicant.

P. Petrides, for the Respondent.

JUDGMENT

The following judgment was delivered by;-

ANASTASSIOU, AG. D.J,: This is an application [*1411] to set aside the judgment obtained by the Plaintiff (Respondent in these proceedings) against the Defendant (Applicant here) in the above Action.

The Plaintiff's claim in this action was for £100.- by virtue of a written agreement between the parties dated 25.11.1968 in respect of a refund of commission for an order put by plaintiff to the defendant.

The writ of summons, which was specially indorsed under 0.2 r.6, was taken out on the 20th of May, 1970 and it was served on defendant’s daughter (living with) on the 5th June, 1970. Defendant has failed to enter an appearance and plaintiff on 1.9.70 has filed an ex-parte application for judgment in default of appearance. On 19.9.70 judgment was entered into in favour of plaintiff and against the defendant for failing to

enter an appearance. The judgment was for the sum of £100.- with legal interest and only £5.- costs as there was another action pending between the same

parties (Action No. 2605/70) in which full costs were adjudged.

In pursuance to the obtaining of the judgment plaintiff has issued on 24.10.70 a writ of execution against the movable property of the defendant which at the end returned unexecuted as defendant had no movables.

On 21st December, 1971 plaintiff has filed an application for the payment of the judgment debt by defendant by monthly payments. That application was fixed for hearing on the 26th January, 1972, but was adjourned to

4.3.72 for service, as defendant was not served, with the [*1412] application. The documents relating to thin application for monthly

instalments were finally served upon defendant's wife on 10.2.72.

On 4.3.72 defendant failed to appear before the District Court of Nicosia, so the trial judge adjourned the hearing of the Application to the 23rd March, 1972 directing that a Warrant of Arrest he issued against defendant and when arrested to he brought before the Court on

23.3.72. There and then it was adjourned to 17.4.72 and subsequently to 11.5.72.

Meanwhile on the 28.4.72, the present application for setting aside judgment was filed. This application, dated 28.4.72 is supported by an affidavit dated

28.4.72 and a supplementary one dated 13.5.72 both sworn by defendant explaining that he failed to enter appearance, as the writ of summons was served upon his wife, who resides at Pedhoulas, and has failed to notify him or hand over to him the writ of summons. In his supplementary affidavit defendant stated that he did not have any knowledge of the action when a writ of execution of movables was issued against him, but he only got to know about plaintiff's claim when an application for payment of the judgment debt by monthly instalments was personally served upon him. With regard to the substance of plaintiff’s claim and/or the merits of the case the only thing mentioned in defendant's supplementary affidavit is the content of paragraph 5 to the effect that plaintiff’s claim is denied and has no legal effect, but no evidence at all that defendant has a prima facie defence. [*1413]

On the 20th May, 1972, plaintiff filed a notice of intention to oppose defendant’s (applicant's) application supported by an affidavit sworn by plaintiff on 20.5.72. After several adjournments it was finally fixed for hearing on 22.9.72 when it was heard. The opposition was to the effect that application was filed, long time, something like 19 months, after judgment was entered and that the application to set aside judgment was not duly reasoned.

On 22.9.72 when the application for setting aside the judgment was fixed for hearing, defendant (applicant) gave evidence himself to the effect that he visits Pedhouls once every month or every two (2) months or every four (4) months and that his wife failed to give him the writ of summons for this action. On being cross-examined by the other side defendant stated that he was and still is in good terms with his wife and also that he has a shop at Pedhoulas in which he is interested as a manager. Further on, defendant said that he was not present when the writ of execution of movables was to be executed by the bailiff. Defendant went on to say that he only got to know of this action against him when an application for monthly instalments was personally served up on him in Nicosia. During the re-examination defendant stated that the reason he did not know anything about this claim against him, at the stage of the execution of writ of movables, was that, he had many writs against him the last six (6) years so the mukhtar was sending them back as unexecuted. To a question put to him by the Court to explain why he did not appear, contrary to what he admitted [*1414] during cross-examination that he has appeared at the hearing of the application for monthly instalments because the application was personally served upon him, although from the record of the Court it appears that the application for monthly instalments was served upon his wife, his answer was:- "I do not remember, I cannot tell as I get so many writs of summons".

I had the opportunity to watch the demeanour of defendant while giving evidence and I came to the conclusion that he was not telling the truth, his answers were mostly evasive and in many respects inconsistent with the Court's record as well as self-contradictory, in the following points:-

(a) Defendant’s explanation that he visits Pedhoulas village, where his wife and family reside, once every 2 months or every four months or that he is abroad for periods like 2 to 3 months is not an excuse for him as the time which has passed since the service of the writ of summons upon him, is considerably long, to wit, 19 months, so he had every opportunity to enter an appearance or at least get knowledge of these proceedings against him.

(b) There is no evidence that the writ of movables was returned unexecuted without the Mukhtar visiting the premises of defendant, in the absence of such evidence I presume that the Court Officer and the Mukhtar have done their job properly.

(c) Defendant said that he has appeared in Court and got knowledge of this action against him, when an [*1415] application for monthly instalments was personally served upon him in Nicosia. Comparing this statement of defendant with the record of the Court, I can positively say that it is a different version as the application for monthly instalments was served on his wife on 10.2.72 and not upon him.

With regard to the legal aspect of this case, the application was based on Rule 10 of Order 17 of the Civil Procedure Rules which reads as follows:-

"When judgment is entered pursuant to any of the preceding rules of this order it shall be lawful for the Court in a proper case to set aside or vary such judgment upon such terms as may be just".

The corresponding rule of the English Rules of the Supreme Court is rule 10 of Order 13, which is just the same with only one difference; that is to say, that the words "in a proper case" which appear in our rule are missing from the English text of the equivalent rule.

It is obvious from the wording of this rule that the Court has the power to set aside, judgments entered into in case of default of appearance, in a proper case. The same power is given to the Court to set aside judgments obtained in default of pleadings under Order 26 rule 14 which reads as follows:-

"Any judgment by default whether under this Order or under any other of these rules may in a proper case be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit". [*1416]

The corresponding rule of the English Rules of the Supreme Court is rule 15 of Order 27, in which again the words "in a proper case" do not appear.

It is obvious from the wording of this rule as well, that judgment obtained by default "under any order of these Rules" can be set aside in a proper case. The leading case on this point is that of Evans v. Bartlam (1937) A. C. p. 473, in which it is mentioned that the setting aside of judgments is discretionary.

An application, to set aside judgment obtained by plaintiff in default of pleadings, under rule 14 of Order 26 was the object of examination by the Supreme Court in the case of Ioannis Cotsapas and Sons Ltd. v. Titan Construction and Engineering Company (1961) C.L.R. page 317. In this case where Evans v. Bartlam

(1937) A.C.473 and other English authorities on the matter, were examined, it was decided that "The question of setting aside a judgment is a matter of discretion and the primany consideration for a judge in exercising his discretion is whether the defendant has merits to which the Court should pay heed".

In a more recent case Costas Christoforou v. Kyriakoullis A. Kyriakoulli (1963) 2 C.L.R. page 159 the Supreme Court decided that "the affidavit in support of the application must contain (in addition to explaining applicant’s default) statements of fact showing merit in applicant's case so as to enable the Court to exercise its discretion properly, under the Civil Procedure Rules 0.26 rule 14, otherwise the plaintiff is entitled to retain the judgment obtained by [*1417] default. The onus rests upon the applicant to satisfy the Court that there is substance, in the litigation which the setting aside of the judgment will, necessarily, re-open.

Both judgments of the Supreme Court referred to above, refer to judgments obtained by default of pleadings under rule l4 of Order 26 of the Civil Procedure Rules but by analogy they also apply in cases where judgment was obtained by default of appearance. This is obvious from the wording of rule

14 of Order 26 reading as follows:-

"Any judgment by default, whether under this Order or under any other of these Rules, may in a proper case be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit".

It is also mentioned in the leading case of Evans v. Bartlam that both rules, Order 13 rule 10 and Order 27.r.l5, corresponding to rule 10 0.17 and to rule 14 of 0.26 of our Civil Procedure Rules respectively, give a discretionary power to the judge to set aside a default judgment.

In the Supreme Court Practice (White Book) of the Year 1967 again it is mentioned that Rule 9 of Order 13 which was taken from the former 0.13 rule 10 should be compared and if necessary read with other rules conferring powers on the Court to set aside judgments obtained under any other order of these rules.

Having regard to the evidence adduced as well as to the legal aspect of the case I came to the following conclusions:- [*1418]

A) As to defendant's explanation in defaulting to appear I am not at all convinced by him that he got no knowledge of the proceedings against him, so long time (19 months) after the service upon his daughter of the writ of summons and later when a writ of movables was issued against him. Further the impression I have from the evidence as a whole is that, this application is not a bona fide one but was only made with a view to avoiding and/or delaying execution.

B) Secondly as to the merits of the case to which I should pay heed, there is not sufficient material before me either in the supporting affidavits or in evidence to exercise my discretion in his favour.

C) The legal aspect being that the question of setting aside a judgment is a matter of discretion I am of the opinion that this is not a proper case in which I should exercise my discretion in defendant’s (applicant's) favour and set aside the judgment entered into by plaintiff against him.

In the end judgment obtained by plaintiff against defendant stands good, application to set aside judgment is hereby dismissed with costs to be assessed by the Registrar of the Court.

Application dismissed with costs.