Court allows oral application for stay of proceedings under Companies Law as interlocutory order.

[*262] 1984 Dec.8

(KALLIS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Mobil Oil Cyprus Ltd.,

Plaintiffs,

v.

Kambia Mines Ltd.,

Defendants.

(Action No. 3792/84).

Civil Procedure - Interlocutory, order - Action commenced by writ in virtue of Order 65 of the Civil Procedure Rules - Winding up petition of defendant company - Order staying proceedings in the aforesaid action in virtue of section 215 of the Companies Law, Cap. 113 - Whether an Interlocutory order within the meaning of rule 8 of the said Order 65 - Question answered in the affirmative - It follows that the relevant application for the order can be made orally at the hearing of the action (Ord. 65, Rule 8 of the Civil Procedure Rules).

Interlocutory order - Distinction between a “final” and an “interlocutory” order - Test applicable.

A. Dikigoropoulos for the Plaintiffs.

N. PapaEfstathiou for the defendants.

RULING

The following ruling was delivered by:

KALLIS, D.J.: The plaintiff company brought [*263] an action against defendant company for £98.71 cents being balance of goods sold and delivered. Counsel for the defendant company, relying on section 215 of the Companies Law, Cap. 113 applied yesterday for a stay, of the proceedings on the ground that there has been presented a winding-up petition for the winding up of the defendant company. Now, section

215 provides as follows:

“215. At any time after the presentation of a winding-up petition, and before a winding-up order has been made, the company, or any creditor or contributory, may -(a) Where any action or proceedings against the company is pending in any District Court or the Supreme Court apply to the Court in which the action or proceeding is pending for a stay of proceedings therein; and

(b)...…………………. the Court…may….stay or restrain the proceedings accordingly on such terms as it thinks fit.”

The application was made orally and counsel relied, in this connection, on 0.65, r.8 of the Civil Procedure Rules which runs as follows:-

“No applications for interlocutory orders antecedent to judgment (other than applications for injunctions or variation of the times prescribed by the rules of this Order) shall be made before the hearing of the [*264] action. Any application for any such interlocutory order may be made orally at the hearing, and the Court may hear the application and deal with it in such manner as may be just.”

Counsel for the plaintiffs submitted that 0.65, r.8 was not applicable because the application for stay is not an interlocutory application. In view of the novelty of the issue, Itook time to consider it until today.

The test as to whether an order is an interlocutory order is thus stated by Lord Alverstone, C.J. in Bozson v. Altrincham U.D.C.

(1903) 1 K.B. 547 at p. 548: “Does the .... order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order”. A different test is stated in Salomon v. Warren, (1891) 1 Q.B. 734, namely that an order is an interlocutory order unless it is made on an application of such a character that whatever order had been made therein must finally have disposed of the matter in dispute. (See, also, Annual Practice 1958, p.1667 and Williams and Glyn’s Bank v. Koulougibis (1984) 1 C.L.R.569).

More relevant is the case of Hind v. The Marquise of Hardington, VI T.L.R. 267 when it was held that an order staying proceedings

against one of several defendants in an action was an interlocutory order.

Looking at the order sought by means of the oral application we cannot say that it amounts “to an order finally disposing of the rights of the parties”, the more so that the Court can by

virtue of the aforesaid section 215 Cap. 113 stay the proceedings on such terms as it thinks fit. Applying, therefore,

the aforesaid tests, to [*265] the nature of the order sought and relying, also, on the Marquis case, supra, I hold that an application for stay of proceedings, under s. 215 of Cap. 113 is an application for an interlocutory order within the meaning of order 65 rule 8 and it can, accordingly, be made orally. In the result, having considered the application for stay I hereby make an order-staying all proceedings in the action pending the final determination of winding-up petition No. 180/84, Costs of this application reserved.

I

conclusion, I would add that the above tests on which I have relied were enunciated in case-law which dealt with the meaning of “final” and

“interlocutory order” in relation to the time within which an appeal may be filed (see 0.35, r. 2 of our Civil Procedure Rules and 0.58, r.15 of

the old English. R. S. C.) I have adopted this course because, indeed, what I had to resolve was the meaning of “interlocutory order” no matter in what context or purpose it is used or employed; and should an appeal be filed against the order I have just made and the issue of time, within which such appeal may be filed is raised, then unavoidably we shall be seeking recourse to the above case-law regarding the meaning of “interlocutory order”. Therefore,

since the said case-law is useful and applicable for discerning the nature of the order made after same is made-even for time within which to appeal purposes - I think it is equally useful and applicable for discerning its nature before it is made.

Order staying proceedings.