Cyprus court grants stay of execution pending appeal on foreign maintenance order with security condition.

[*299] 1982 June 30

( IOANNIDES , D.J.)

IN THE DISTRICT COURT OF NICOSIA

In the matter of the Foreign Judgments (Reciprocal Enforcement) Law,

Cap.10,

and

In the matter of an Order of the High Court of Justice, Family Division, obtained by Jennifer Margaret Georghiades, dated the 15th May, 1980,

(Application No. 32/1980).

Civil Procedure - Appeal - Stay of execution pending appeal - Principles applicable - Order 35 rule 18 of the Civil Procedure Rules - Appeal against maintenance order - Respondent, out of the jurisdiction and amount of the order an enormous one - Stay of execution granted on condition that applicant should lodge in Court the amount of the Order or furnish an irrevocable bank guarantee for that sum.

Chr. Triantafyllides, for the Applicant.

T. Papadopoulos, for the Respondent.

JUDGMENT

The following judgment was delivered by:-

IOANNIDES, D.J.:- This is an application [*300] for a stay of execution of the Order of the Court made on 13.11.l98l, pending an appeal which the applicant has lodged against the Ruling in which the Order has been made.

The parties to the application, who were husband and wife, were married in 1971 but their marriage was dissolved in 1975·

On 15.5.80 a Court in the United Kingdom issued a Maintenance Order in favour of the applicant pursuant to which the respondent was ordered to pay the lump sum of £50,000 to her the sum of £5,000 to each of the two children of the marriage plus a further sum of £1,750 to the wife and to each of the children annually.

The above Order was registered in the District Court of Nicosia and the applicant applied to set aside the said Order.

The District Court of Nicosia decided on 13.11.8l to dismiss the application as regards the payment of the lump sums, i.e., the £50,000 to the wife and the £5,000 to each of the children and to set aside the yearly payments of the sum of £1,750 to the wife and to each of the children.

The present application concerns, therefore, the stay of execution for the payment of the lump sum of £50,000 to the wife and the £5,000 to each of the children, pending the outcome of the appeal which was lodged on 25.11. 198l.

The application is based on 0.35, r.18 of the Civil Procedure Rules which provides as follows:- [*301]

"An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from except so far as the Court appealed from or the Court of Appeal, or a Judge of either

Court, may order and no intermediate act or proceedings shall be invalidated, except so far as the court appealed from may direct. Before any order staying execution is entered the person obtaining the order shall furnish such security (if any) as may have been directed. If the security is to be given by means of a bond, the bond shall be made to the party in whose favour the decision under appeal was given."

Order 35, rule 18 is identical to 0.58, r.12 of the English Rules of the Supreme Court and the principles governing the exercise of judicial discretion in England on the question of stay, have been accepted and applied by our Courts.

These principles may be stated summarily as follows: It is within the discretion of the Court to grant or refuse a stay. Such a stay may be granted pending an appeal where special circumstances exist in a case which so requires. Although the practice is that a successful litigant should not be deprived of the fruit of his litigation pending an appeal, when a party is appealing in the exercise of his undoubted right, the. Court ought to see that the appeal, if successful, is not rendered nugatory.

During the hearing of the present application, both counsel in addressing the Court have referred in [*302] detail to the aforecited principles and to many English and Cyprus cases on the matter. Counsel have made particular reference to the cases of Annotlyle (1886) II Probate Division, 116, Wilson v. Church (No.2) (1879) 12 Chancery Division, 458, Erinford Properties Ltd. v.Cheshire (1974) 2 All E.R. 448, Orion v. Ducane

(1964) 3 All E.R. 466, Katarina Shipping Inc. V. The Cargo on board the Ship "POLY" (1978) I C.L.R., 355, Scheepswerf Bodewes-Gruno v. The Ship "ALGAZERA" (1980) I C.L.R. 595, London & Overseas Sugar Co.and Another v. Tempest Bay Shipping Co. Ltd. and Others (1978) I C.L.R.,369.

Learned counsel of the applicant has submitted that as the respondent is a foreigner living out of the jurisdiction, if the money of the judgment is paid to her, and the applicant is successful in his appeal, the respondent may never be able to repay the money, if it is taken into account the rather enormous sum of the judgment and the low income of the respondent.

On the other hand learned counsel of the respondent submitted that the money of the judgment is in the nature of maintenance to the wife and the children of the marriage and that the relevant proceedings were initiated eight years ago. During that period the applicant has not paid any money to the respondent and now that she has the Order in her favour she should not be deprived of the benefits of that Order.

We have examined carefully the submissions of counsel and have considered the principles and authorities to which we have been referred and cited earlier on in our [*303] Ruling. In our judgment this is a proper case for the granting of a stay of execution. The fact that the respondent is out of the jurisdiction of the Court and that the sums of money which the applicant has been ordered, to pay are enornous bear a lot in our decision. The stay however shall be on condition that the applicant should lodge in Court the amount of the Order or furnish an irrevocable back guarantee for that sum.

In the result, a stay of execution is granted on condition that the applicant should lodge within 25 days in Court the amount of the Order, i.e., £60,000 or furnish within the above period an irrevocable back guarantee for that sum, otherwise the Order shall be liable to execution.

There will be no order as to costs.

Stay of execution granted. No order as to costs.