clr/1977/1977_1_159.pdf

(1)that an application for the stay of an order or an interlocutory order is a matter within the powers of a trial Court, even if it has delivered its own judgment on the issue; that where the application is for an injunction pending an ap*Reported at p. 143 ante. 159 TAFCO (NO. 2) v. SHIP "LAMBROS L" 1977 Mar. 7 TAFCO (NO. 2) v. SHIP "LAMBROS L' peal the question is whether the judgment appealed from is one on which the successful party ought to be free to act des­ pite the pendency of an appeal; and that one of the important factors in making such a decision is the possibility that the judgment may be reversed or varied. (See ErinfordProperties Ltd., v, CheshireCounty Council [1974] 2 ΑΠ E.R. 448 at p. 454). 5

(2)That the very essence of the order appealed from was to preserve, being a matter of urgency, the goods in question which were of a perishable nature; that a stay is a matter of J Q discretion and therewould be no difficulty in granting the stay sought, until an increased amount of security was given, had this Court been persuaded thatthis was ajust case, irrespective of the views expressed in granting the order, but it has nol been so persuaded. 15

(3)That if the stay is not granted, a possible reversal of the order appealed from would not be rendered nugatory, as the amount ordered to be given as security is, on the material before this Court, more than sufficient to satisfy any possible claim of the defendant ship; and that, accordingly, the appli- 20 cation will be dismissed. Application dismissed. Cases referred to: Erinford PropertiesLtd. v. CheshireCounty Council [1974] 2 All E.R. 448 at p.454. 25 Application. Application by thedefendant ship for an order staying the execution and/or operation of an order or injunction, directing delivery of the cargo on board the defendant ship to the plaintiffs, pending the hearing and determina- 30 tion of an appeal therefrom. E. Montanios, for theapplicant. X. Syllouris, for therespondents. Cur. adv. vult. Thefollowing ruling was delivered by:A. LOIZOU,J.: This is an application by the defendant 160 35 ship for an order that "the execution and/or operation of the order and/or injunction of this Court dated 24th February, 1977 be stayed or suspended until the appeal thereirom of which the defendant has given notice by a Notice 5 of Appeal dated 2nd March, 1977 shall have been heard and decided". The order* referred to above wasto the effect that upon the respondents-plaintiffs in this application furnishing a security in the sum of US dollars 220,000 or the equiva10 lent in Cyprus Pounds to the satisfaction of the Registrar of this Court and valid until the final determination of this action, for the satisfaction of any judgment to be given in favour of the defendant ship or its owners against the plaintiffs, the cargo on board the defendant ship to be de15 livered and/or taken delivery of, by the plaintiffs who are theowners and persons entitled to same. The application is based on sections 19, 29

(2)(

1. a)and 32 of the Courts of Justice Law, 1960, on rules 175, 176, 203, 205, 212 and 237 of the Rules of the Supreme Court 20 of Cyprus in its Admiralty Jurisdiction, on Order 35, rr. 18 and 19 of the Civil Procedure Rules and on the inherent powers of the Court. The Notice of Appeal from that order was filed on the 2nd March, 1977 and the grounds of the appeal and rea25 sons thereof, briefly, are to the effect that, (
2. a)in law, the order should not havebeen made, and (
3. b)in any event the amount of US dollars 220,000 was insufficient to satisfy the defendant's claim. There is a further complaint that a mistake was made 30 in the mathematical calculations by stating that the total amount claimed for demurrage, including another ten days from the date of the order, was in the region of US dollars 272,000, whereas that was the amount up to the date of hearing of the application, but I need not really, 35 be concerned with that aspect, as the figure given was approximate and only indicative of the extent of the applicant-defendant's alleged claim, as emanating from the material placed before me... *Vide p. 143 in this Part ante. 161 1977 Mar. 7 TAFCO (NO. 2) v. SHIP "LAMBROS L" 1977 Mar. 7 TAFCO (NO. 2) v. SHIP LAMBROS L" After the filing of the present summons, on the 2nd March, there was also an application ex-parte, for a stay of the same order, which was filed on the 5th March, 1977, that is to say, a day after the furnishing of thesecurity bythe respondents-plaintiffs. (Seeletter of theBank of Cyprus,dated 3rdMarch, 1977).The order applied for by the said application, similar in effect to the one before me today was granted, but, of course, with a limitation to remain in force pending the determination of the present application. 5 Learned counsel for the applicant-defendant ship and without prejudice to their case, as set out in the noticeof appeal, has confined the issue, to the sufficiency of the amountordered bywayof security. As it appears from the order, subject of these proceed- 15 ings, in arriving at the amount of US dollars 220,000 I took into consideration the fact that in accordance with the additional clause A of the Bills of Lading issued in respect of the goods in question, and without deciding on the submission of counsel for the respondents-plaintiffs 20 that no demurrage was agreed to be paid by them to the ship "the demurragein respect of each parcelshall notexceed its freight", which was stated to be in the region of USdollars 150,000. I further took into consideration the undisputed fact that the ship left the port of Latakia and 25 when it arrived at Limassol, was arrested on the30thDecember, 1976 and since then its release has not been secured,though the amount of security wasnot a substantial one, and, therefore, shewas unable toperform her obligations, namely the delivery of the cargo at its destination. 30 Nodoubt, an application for the stay of an order or an interlocutory order is a matter within thepowers of a trial Court, even if it has delivered its own judgment on the issue. This appears clearly from the case of Erinford PropertiesLtd. v. Cheshire CountyCouncil[197412 AllE.R. 35 p. 448 where Meggary, J. also stated at p.454: "On the trial,thequestion iswhethertheplaintiff has sufficiently proved his case. On the other hand where the application is for an injunction pending an appeal, the question is whether thejudgment that 40 has been given is one on which the successful party 162 10 5 10 15 ought to be free to act despite the pendency of an appeal. Oneof the important factors in making such a decision, of course, is the possibility that the judgment may be reversed or varied. Judges must decide cases even if they are hesitant in their conclusions; and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong. No human being is infallible, and for none are there more public and authoritative explanations of their errors than for judges.A judge who feels no doubt in dismissing a claim to an interlocutory injunction may,perfectly consistentlywithhisdecision, recognise that his decision might be reversed, and that the comparative effects of granting or refusing an injunction pending an appeal are such that it would be right to preserve the status quo pending theappeal". And further down, 20 25 30 "Theremay,of course,bemanycaseswhereitwould be wrong to grant an injunction pending appeal, as where any appeal would befrivolous, or to grant the injunction would inflict greater hardship than it wouldavoid, andsoon.Butsubject to that, theprinciple is to be found in theleading judgment of Cotton L. J. in Wilsonv. Church(No. 2) [19621 3 All E.R. 466, where, speaking of an appeal from the Court of Appeal to the House of Lords, he said, 'when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the ap'peal,if successful, isnot nugatory'." This was a case where the judge dismissed an interlocutory motion for an injunction and it was found that he had jurisdiction to grant the unsuccessful applicant an in35 junction pending an appeal against the dismissal, there being no inconsistency in granting such an injunction after dismissingthemotion. In our case, the application was granted, and the very essence of it, was to preserve, being a matter of urgency, 40 the goods in question, which were of a perishable nature. A stay, is a matter of a discretion, and I would have had no difficulty in granting the stay sought, until an increas163 1977 Mar. 7 TAFCO (NO. 2) v. SHIP •LAMBROSL" 1977 Mar. 7 TAFCO (NO. 2) v. SHIP 'LAMBROS L" ed amount of security was given, had I been persuaded that this was a just case, irrespective of the views that I previously expressed in granting the order, but 1 havenot been so persuaded. If I do not grant the stay, a possible reversal of my judgment would not berendered nugatory, as the amount ordered to be given as security is, on the material before me, more than sufficient to satisfy any possible claim of the applicant-defendant ship. The allegation that under the Greek Law different principles govern questions of lien for demurrage, being a matter of foreign law, hasnot been established in theproperway. For all the above reasons, the present application is dismissed with costs. By so doing the order made on the ex-parteapplication on the 5th March, 1977, is also discharged. Applicationdismissedwithcosts. 164 10 15