clr/1977/1977_1_255.pdf

LHADJIANASTASSIOU, A. LOl/OU, MALACHTOS, JJ.] ANDREAS CHRISTOU CHILIDES, Appellant-Plaintiff, v. ELIAS DANOS, Respondent-Defendant. (CivilAppeal No. 5530). 5 Estoppel—Waiver—Consent judgment—As effectiveasan order of the Courtmadeotherwise than by consent—Variation of consent judgment by mutual agreementof the parties as to the mode of payment of instalments due thereunder—Judgment creditor—Waived his rightsto insiston original mode of payment—And is estoppedfrom insisting on such mode of payment—Plea ofresjudicata ofno avail. Consent judgment—Effect. 10 15 20 25 On April 6, 1973,the appellant-plaintiff obtained judgment, by consent, against the respondent-defendant for the sum of £.500. By means of this consent judgment the respondent was allowed topay the judgment debt in five instalments and it was further provided that failure to pay any instalment "renders the whole amount or any balance payable forthwith". The judgment debtor paid all instalments without any delay but the instalment due on September 1, 1973 reached the Advocate for thejudgment creditor onSeptember 5, 1973,instead of on September 1. Thereupon the judgment creditor issued a writ of movables for therecovery of thebalance due under the said consent judgment and the judgment debtor applied for an order staying the execution and setting it aside on the ground that thejudgmentdebthadbeen paid in full. The trial Court found that the mode of payment had been changed byconsent of the parties;and after the finding that the judgment creditor has waived his right to complain against the non strict adherence to the original mode of payment by the judgment debtor, it set aside the writ of execution. The judgment creditor appealed contending that the trial 255 1977 May 30 ANDREAS CHRISTOU CHILIDES v. ELLAS DANOS 1977 May 30 ANDREAS CHRISTOU CHILIDES v. EUAS DANOS Judge was wrong in applying the doctrine of waiver with regard to the rights and obligations arising from ihe consentjudg, ment and that the finding that the conditions of payment embodied in the consent judgment had been changed by consent was against the res judicata doctrine created by the consent judgment. 5 Held,dismissing the appeal, that an order by consent which has not been discharged by mutual agreement, and has remained unreduced, is as effective as an order of the Court made otherwise than byconsent and not discharged on appeal; that \Q once the order made by consent was varied by mutual agreement of the parties as to the mode of payment of the instalments due, the plea of res judicatais of no advantage to the appellant and the appeal will be dismissed. (Dictum of Lord Blanesburgh in Kinch v. Walcott [1929] A.C. 482 (H.L.) at 15 p. 493 adopted and followed). Appealdismissed. Cases referred to: BirminghamandDistrictLand Co.v.London andNorthWesternRailway Co.[1888] 40 Ch.D.268); 20 Kinch v. Walcott[1929] A.C. 482 (H.L.) at p. 493. Appeal. Appeal by plaintiff against the order of the District Court of Nicosia (Boyadjis, S.D.J.) dated the 6th December, 1975 (Action No. 525/72) whereby it was held that 25 the writ of execution issued against the movable property of the defendant, for the balance of the judgment debt due to the plaintiff, was unjustifiably issued and was set aside. M. Kyriakides, for the appellant. D. Papachrysostomou, for therespondent. 30 Cur. adv. vult. Thejudgment of theCourt wasdelivered by:HADJIANASTASSIOU, J.: This is an appeal from the order of a Senior Judge of the District Court dated December 6, 1975, whereby the writ of execution issued against the movable property of the applicant for the balance of the judgment debt allegedly dueto the respondent was unjustifiably issued and set aside by the learned trial Judge. The question raised in this appeal is whether the 256 35 consent order has been waived by the consent of the parties. 1977 May 30 The appellant brought an action against the respondent on January 27, 1972 claiming (

1. a)damages for the breach 5 of a contract dated May 5, 1970 for the sale of a field and (
2. b)the return of £ 4 0 0 which was paid to the defendant together with interest of 9per cent. ANDREAS CHRISTOU CHILIDES v. EL1AS DANOS On April 6, 1973, a settlement was reached between the parties and a consent order was issued in these terms:10 15 'This Court does order and adjudge that the defendant do pay to the plaintiff the sum of £500.- with interest thereon at 4%per annum from April 6, 1973, to date of payment; provided that if the defendant pays the sum of (
3. a)£ 1 5 0 on 25th May, 1973; (
4. b)£ 5 0 on 1st July, 1973; (
5. c)£ 5 0 on 1st August, 1973; (
6. d)£ 5 0 on 1st September, 1973;and ( e ) £ 5 0 on 1st October, 1973, then the whole judgment debt will beconsidered fully satisfied". Then it was made clear in that order that "failure to 20 pay any instalment as above renders the whole amount of anybalance payable forthwith". In fact, after the consent order, the instalments of May 25, 1973, July 1, 1973, August 1, 1973 and October 1, 1973, were paid without any delay by thejudgment debtor 25 by cheque to the counsel of the plaintiff. With regard to the instalment due on September 1, 1973, again it was paid by cheque issued by the defendant on the same date, but because it wasposted by the advocate of the defendant to plaintiff's advocate, there was a delay and it reached 30 the latter on September 5, instead of September 1, 1973. The judgment creditor without any delay at all pursued his legal rights through the present advocate who issued a writ of movables for the recovery of thebalance, under the aforesaid order. In fact, before the writ was executed, the 35 judgment creditor left for England where he settled permanently. The judgment debtor, feeling aggrieved, made an application to the District Court praying for an order of the court staying the execution and setting it aside on the ground that the judgment debt had been paid in full. 40 On the other hand, counsel on behalf of the judgment 257 1977 May 30 ANDREAS CHRISTOU CHILIDES v. ELIAS DANOS creditor opposed the application and in the affidavit filed it was alleged that the facts stated in the notice were true and correct and that the contents of the applicant's affidavit are denied. The learned judge, having heard counsel on September 5, 1975, reserved hisruling. Hedelivered it on September 9, 1975,andsaidthat:- 5 "There isnothing in the advocate's affidavit whichis objectionable in the sense that it is an allegation of any positive fact which the affiant is unable of his 10 own knowledge to prove or is theresult of mere information and belief of the affiant without reference tothesourcesandgroundsthereof. For the above reasons I have arrived at the conclusion that respondent's opposition to the application is fairly in accordance with the provisions of 0.48, r. 4 and 0.39 r. 2 of the Civil Procedure Rules and the preliminary objection of counsel for the applicantishereby overruled". Having reached that conclusion,the application wasad- 20 journed and onOctober 18, 1975,thelearned Judgeheard the evidence of theapplicant judgment debtor and theaddresses of both counsel. The second ruling was delivered onDecember 6, 1975.ThelearnedJudge,havingaccepted that theevidenceofthejudgment debtor wastrue andcor- 25 rect and that the mode of payment in the consent order had been changed byconsent of theparties,dealt withthe issueof estoppelorwaiver.ThetrialJudge,havingaddressedhis mind to theobservations madein Birmingham and DistrictLand Co. v.London andNorth Western Railway 30 Co. [1888] 40 Ch.D. 268,regarding thedoctrine ofwaiver,saidin hisruling:"In this case the obligations of the applicant was to pay £50.- on 1.8.73 and £50.- on 1.9.73 to Mr. Phivos Clerides against thejudgment in favour of the 35 respondent. The arrangement suggested by respondent and accepted by applicant on 3.8.73, although does not in itself directly postpone the time of payment of future instalments, yet the date of payment thereof was madeimpossiblewithout the presence of 40 258 15 5 10 15 20 25 the respondent in applicant's office to accept payment. Byhisfailure tocallat applicant's office on1.9.73 to collect the instalment and/or by his failure todemand afresh, in time or at all, compliance with the originalmodeof payment, therespondent haswaived hisrightto complain against thenonstrict adherence to the original mode of payment by the applicant. Respondent cannot benefit himself from a situation brought about by his own conduct, which induced applicant, to his detriment,not to send his cheque to Mr. Clerides in time on 1.9.73 as he had been doing in thepast. In conclusion, I wish to state that, since all other instalments had been paid in accordance with the consent judgment and the respondent has waived his right to complain about the mode and/or time of payment of the subject matter instalment originally due on 1.9.73, the applicant-debtor has paid in full the judgment debt; therefore, the writ of execution against the movable property of the applicant for any balance of the judgment debt allegedly due to the respondent was unjustifiably issued and is, hereby, setaside". This,indeed, is auniquecase,andregretfully thewhole of thedisputeand thelongproceedingswhichhavefollowed have arisen solely due to legalistic quibbles raised by counselonbehalf of thejudgmentcreditor.· This appeal was argued by counsel on behalf of the 30 appellant mainly on these three grounds: