Court dismisses application to set aside default judgment due to lack of merits and applicant's delay.

[*189] 1983 Nov. 5

(ELIADES, D.J.)

IN THE DISTRICT COURT OP LARNACA

Panayiota Matheou,

Plaintiff,

v.

Antonis Hambis Fanieros,

Defendant.

(Action No, 1713/82).

CivilProcedure

- Judgment in default of appearance - Setting aside of - Principles applicable

- No valid grounds upon which a good defence could he based shown - And applicant guilty of delay- Application refused.

Z. Mylonas, for the Applicant.

A. Andreou, for the Respondent.

RULING

The following judgment was delivered by:-

ELIADES, D.J.:- By the present application [*190] the applicant seeks a Court's order to set aside the judgment which has been obtained against him by the defendant.

The action which is based on a contract for the sale of land was filed oh the 11/11/82 and was served upon the defendant on the 2/12/82. As he failed to enter an appearance the plaintiff filed on the 8/1/83 an application for judgment in default of appearance which was fixed on the 11/1/83. The application came up for hearing finally on the 17/1/83 when the plaintiff proved her case and obtained a declaratory judgment that a contract for the sale of a piece of land by the plaintiff to the defendant at Ayia Anna was void due to defendant’s failure to honour his obligations concerning the payment of the value of the land. The defendant was also ordered to pay £131.750 mils cost.

A writ of movables which was filed on the 3l/l3/83 was returned as unexecuted on the 3/5/83.

On the 12/7/83 the plaintiff filed an application for the payment of the amount of £131.750 mils by monthly instalments which was fixed for hearing on the 5/10/83.

On the 22/9/83 the present application was filed for setting aside the judgment obtained on the 17/I/83.

The application is based on 0.17, r.

10 of the Civil Procedure Rules which provides that "where judgment is entered [*191] pursuant to

any of the proceeding rules of the 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, 0.26, r.14 makes an identical provision for cases in which judgment is obtained in default of pleadings.

The main considerations which will have to be taken into account in applications of this kind have been explained by Lord Atkin in the following terms:

"The Courts however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that, where the judgment was obtained regularly, there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie oase. It was suggested in argument that there is another rule, that the applicant must satisfy the Court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like, I do not think that any such rule exists, though obviously the reason, if any, for sllowing judgment and thereafter applying to set it aside is one of the matters to which the Court will have regard in exercising its discretion, "'(See Evans v. Bartlam (1937) 2 All E.R. p,646, which was later followed in Miller v. Miller (1960) 3 All E.R.115, and Werd v. James (1965) 1 All E.R,563.)

Concerning the necessity of the applicant to show that he has a good defence Lord Wright was of the opinion that [*192]

"The primary consideration is whether he has merits to which

the Court should pay heed; if merits are shown, the Court will not prima facie desire to let pass a judgment on which there has been no proper

adjudication," (See '' Evans v. Bartlam (Supra)).

The above mentioned case was later followed and adopted in Cyprus. (See Kotsapas v. Titan Construction Engineering Co.(1961) C.L.R. 320 and in Christoforou v. Kyriacoulli (1963) 2 C.L.R. 159.where Vassiliades J. in commenting on the evidence required to show merits in the applicant’s case said the following:

"General statements such as: 'I have instructions to defend the above action' or 'my client has a defence on the merits' are not sufficient to constitute a proper case where the Court should exercise its discretionary powers to set aside under rule 14 of Order 26, a default judgment obtained under rule 2 of the same Order."

The fate of this application depends on the contents of the affidavits accompanying both the application and the opposition as no notice for cross-examination was given by either counsel. The applicant’s affidavit is based on the following paragraphs: [*193]

1.Είμαι ο εναγόμενος εις την υπό τον ως άνω αριθμόν και τίτλον αγωγήν.

2.Το κλητήριον ένταλμα εις την υπό τον ως άνω αριθμόν και τίτλον αγωγήν μου επεδόθη την 2.12.1982.

3.Λόγω παραδρομής και/ή αβλεψίας

και/ή παρεξηγήσεως δεν ενεφανίσθη εις το Δικαστήριον, και η ενάγουσα έλαβε

απόφασιν εναντίον και ερήμην μου την 17.1.83.

4.Έχω καλήν υπεράσπισιν και/ή ανταπαίτησιν εις την υπό τον ως άνω αριθμόν και τίτλον αγωγήν.

5.Είναι δίκαιον όπως μου επιτραπή και/ή μου δοθή η ευκαιρία να υπερασπισθώ εις την υπό τον ως άνω αριθμόν και τίτλον αγωγήν.

6.Δια τους ως άνω λόγους αιτούμαι

όπως η απόφασις εις την υπό του ως άνω αριθμόν και τίτλον αγωγήν ημερομηνίας

17.1.83 παραμερισθή. "

It can be seen from the above that no explanation is afforded as to the failure by applicant to instruct a lawyer to enter an appearance on his behalf. (It must be noted that he was under no obligation to appear in Court personally as he states in para. 3 of his affidavit, as the writ was generally endorsed.) He has not offered any valid grounds upon which a good defence could be based so that the Court would consider setting aside the judgment in view of the fact that there was a triable issue which in the interests of justice ought to be adjudicated. [*194]

In addition to the above the applicant is guilty of laches, for although the judgment was issued on the

17.1.83 no steps were taken to set aside the judgment until some 7 months later. If I were to accept that the applicant was ignorant on the 17.1.83 that judgment was pronounced against him I cannot overlook that he became aware of this some time between the 31.1.83 (when the writ of movables was filed) and the 31.5.83 (when it was returned unexecuted). In my mind even this period, from the time he became aware of the judgment until the date of the filing of this application, indicates to such a delay which does not allow me to exercise my discretion in applicant's favour.

For the above reasons the application is dismissed with costs against applicant-defendant to be assessed by the Registrar.

Application dismissed

with costs.