Court sets aside default judgment, allowing full defense grounds and awarding defendant all costs.

[*205] 1984 Nov.10

(P.KALLIS, Ag.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Charita K. Pierides,

Plaintiff,

v.

Nicolas G. Pikis,

Defendant.

(Action No.5494/83).

Judgment by default - Setting aside of - Whether in the exercise of itsdiscretion to set aside a judgment obtained by default, the Court can impose a term that the defence be limited to

the grounds set forth in the affidavit in support of the application to set aside the judgment - Question answered in the negative.

Practice - Costs, in case of setting aside a judgment obtained by default - Principles applicable.

E.Vrachimi (Mrs), for Applicant-Defendant.

N. Pelides, for Respondent-Plaintiff.

RULING

The following ruling was delivered by:-

P.KALLIS, Ag.D.J.: By means of a writ of summons, [*206] filed under 0.65 of the Civil Procedure Rules, the plaintiff claimed vacant possession of a house at Kokkinotrimithia, On 1.11.83, the day named in the writ of summons for appearance of the defendant, the following appearance was made for him: “For the defendant: Mrs.S. Iacovides for Mr. Pipis”. The case was then fixed for mention on 9.12.83 and the defence was ordered to be filed by such date. On 9.12.83 the same as above appearance was made for the defendant and the case was again fixed for mention on 22.12.83 On this latter date no appearance was made on behalf of the defendant and the action was fixed for proof on 12.1 .84 when the Court after hearing evidence made an order of ejectment of the defendant with 3 months’ stay of execution plus £50 costs.

By means of an application which was filed on 9.2.84 the defendant applied for an order setting aside the judgment which has been entered by default of appearance In the affidavit in support of the application, which was sworn by the defendant, it was stated that when the writ of summons was served upon them he instructed Mr. Michalis Pipis as his counsel. On 1.11.83 the date when the action was fixed, his counsel was no longer practising as an advocate and though he had stated to him that somebody else would appear, it appears that such a thing did not happen; and as a result he did not defend the action and an ejectment order was made against him. It was further stated in the affidavit that the defence was based on four grounds, namely: That he was a refugee from Arghaki [*207] Morphou; that he was the father of six children that the sub judice premises were used by him as a dwelling house and as a shop for the sale of fodder; that by the making of the ejectment order he suffers irreparable financial damage and it is doubtful whether plaintiff will finally proceed with the demolition of the premises.

Though counsel for the plaintiff had originally opposed the above application, he finally made the following statement: “I consent to the judgment being set aside for the reasons appearing in the affidavit namely that the defence will be limited to the facts as appearing in paragraph 6 of the affidavit; and I claim the costs thrown away”.

Counsel for the applicant disputed the claim for the costs thrown away and argued, further, that she was entitled to rely on any further facts relevant to the defence; and, also that she was entitled to raise any point of law. I took some time to consider both these issues.

In a note to 0.27 r. 15 of the English R.S.C. (See Annual Practice 1950) the following are stated:

“’Upon such terms’ - The giving leave to come in and defend the action is discretionary and the Court can impose terms (see Cockle v. Joyce, 7 Ch.D.56; Wright v Mjlis, 60 L.T. 837; Re Hartley, (1 891) 2 Ch.121; Hughes v. Justin, (1894) 1 Q.B.667), such as ordering the money to be brought into Court (see Richardson v. Howell, 8 T.L.R. 445). In a case where the defendant had admitted that he was impecunious (the claim being [*208] for damages for personal injuries), the judgment was set aside on the defendant giving security for costs (Burchmore v. Hills and Anr. (1935) 79 L.T.J.30).

But if the judgment is premature and irregular, defendant is entitled to have it set aside, Ex. deb. justitiae, and without terms, except that where costs are given terms may be imposed as a condition of giving costs. For example, the Court may award costs only on condition that no action is brought (Anlaby v. Proetor us, 20 Q.B.C. pp.768, 769; of 0.36, r.33 (n)).”

In Phylachtou and Others v. Michael, (1982) 1 C.L.R. 204, the following were stated at p.211:

“The discretion of the Court as to the conditions that should accompany stay, must be judicially exercised. With regard to costs, the principal consideration that should guide the Court in the exercise of its discretion is the responsibility of each party for costs thrown away. It is well established that in approving the terms upon which judgment may be set aside, the Court should pay heed to the conduct of the parties in the proceedings. On any view of the facts the appellants did nothing to contribute to costs thrown away that were solely occasioned by the default of the respondent. In face of this reality, there was only one way in which [*209] judicial discretion could be exercised, and that was by adjudging the respondent to pay all costs thrown away in consequence of his default.”

Regarding the principles upon which my discretion to set aside a judgment given by default may be exercised, these

are well known; they are aptly summarized in the Phylactou case supra and in Kotsapas v. Titan Construction, (1962) C.L.R. 317, but I need not go into them for, as already

stated, plaintiff consented to the setting aside of the judgment.

Regarding the issue of whether the defence should be limited to the grounds set forth in the affidavit in support of the application to set aside the judgment, having considered the matter, I hold the view that such a limitation cannot be placed for the following reasons: The two proceedings namely the defence to the action and the application to set aside a default judgment are two distinct and separate matters. The primary consideration in the latter proceedings is “whether the

defendant has merits to which the court should pay heed”. (See the Kotsapas case, supra); and a defendant may choose to show that he has such

merits on one or two of the many grounds of defence which he may have. The defence of the action being a matter which is much more wider than the setting aside proceedings cannot be put under any restriction. Further it is well settled that a litigant has the right to amend his pleadings at any time and the question then rises how can this right be reconciled with restrictions or [*210] limitations on the grounds of defence. Also it is possible for evidence in connection with the defence to come to the knowledge of the applicant between the setting aside and the preparation of the defence; and if his defence is limited as suggested by counsel for the plaintiff he will be deprived of the use of such evidence for his defence. I, also, think that the course suggested by counsel for plaintiff is plainly unconstitutional as offending Article 30 of the Constitution.

Regarding the issue of costs, after considering the material before me, I have arrived at the conclusion that the plaintiff did nothing to contribute to costs thrown away which were solely occasioned by the default of the defendant The judgment will, therefore, be set aside on the following conditions: Applicant-defendant will pay all costs thrown away namely the costs up to and including the default judgment and the costs of the application for setting aside the judgment. All such costs to be assessed by the Registrar, upon an application for the purpose by plaintiff, and be approved by the Court. Above costs to be paid within 20 days of communication of assessment to defendant’s counsel. Defence to be filed within

25 days from today; and the reply, if any, within 15 days thereafter whereupon the action will be fixed for hearing on the application of either party.

Judgment set aside.

Order for costs as above