action—Adjournment—Discretion
trial Court— Principles applicable—Application for adjournment to enable defendants procure a witness—Repeated opportunities given to defendants to make arrangements for presentation
their case—No wrong exercise
discretion by trial Court in refusing 5 the adjournment—Article 30.2
the Constitution and Article 6
the European Convention on Human Rights
1950. Constitutional Law—Human rights—Right to a fair hearing within a reasonable time—Article 30.2
the Constitution and Article 6
the European Convention on Human Rights
1950. 10 Contract—Building contract—Impossibility
performance—Section 56
the Contract Law, Cap. 149—Construction not completed owing to Turkish invasion—Contract terminated by contractor due to inability to proceed to site and complete the undertaken work—Claim for retention money and increase
labour cost— 15 Employer still owing to contractor largesum
money representing extra work by far exceeding the retention money—Section 56
Cap. 149—Claim sustained. Under a written agreement dated the 3rd May, 1972 the 20 respondents, a building construction Company, undertook to construct for the appellants twomain blocks
flats at Kyrenia at the agreed price
C£198,630. The completion
the work was agreed to be done in 22 months for certain
the blocks and in 16months for the remaining blocks, from the commence- 25 ment
the building operations. None
the buildings were 30 1 CX.R. 5 10 15 Kler (Cyprus) v. Trenco Constructions completed on the agreed date and when the Turkish invasion and occupation
Kyrenia took place the above constructions, although near in completion, were neither fully completed nor delivered to the appellants. By means
a letter dated the 24th October, 1974 the respondents terminated the said contract on the ground that their workers and site supervisors were unable to proceed to the site
the works or to continue work at the area as a result
the events that started in Cyprus on the 15th July, 1974 and the subsequent military Turkish invasion on the20th July, 1974. In themeantimetheappellants. claimed payment
an amount
C£12,924 on the basis
the architect's payment certificate dated the 25th June, 1975, the details
which were as follows: Retention under certificate No. 139/26 £9,918.- Less down payment for purchases
materials 2,762,- Increase in labour costs for period 1.4.74-30.6.74 20 25 30 £ 7,156- ' 5,758.- Balance £12,924.- In an action by the respondents for the recovery
the above amount the trial Court decided the case on the provisions
section 65*
the Contract Law, Cap. 149 and gave judgment in favour
the respondents for the above amount, having held that because
the conditions prevailing in Kyrenia since 1974 the contract was impossible
performance. The trial Court further held that the fact that not a complete restitution was claimed but only partial and in particular with regard to a specific item,did not changethesituation; that itwasabundantly clear that the appellants owed considerable money to cover, if necessary, the purpose for which the retention money was provided for in the contract, namely, as a guarantee for any failure bythe contractor; that the rest
the accounts remained outstandingandtherightsofthepartiesinthemwerenot affected Section 65 reads as follows: "When an agreement .is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement orcontract isbound to restore it, orto make compensation for it, to the person from whom he received it". 31 Kier (Cyprus) v. Trenco Constructions
the retention money which ought not to have been paid over to the plaintiffs may easily be deducted from their future claim for extracts". Theaction wasfiledonthe 30thJuly, 1975and after the close 5
thepleadings it has been on the hearing agenda
the Court since March, 1977; and for various reasons adjournments were given on three occasions at the request
the appellants. Eventually the hearing commenced on the 5th July and it continued on the 8thJuly, 1977;and after theconclusion
plaintiffs' 10 case the hearing was adjourned to continue on the 7th August, 1977. On that date counsel for the appellants applied for adjournment on the ground that upon exchange
views with his clients it was decided that the only witness that they could call was a certain Felix Reding who was the Director
the 15 appellants and was handling the whole matter on their behalf at all relevant times; and that this witness could not be traced; and, also, on the ground that they intended to adduce evidence from Kyrenia regarding damages to the building between the Turkish invasion and the termination
the agreement. The 20 trial Court refused the application for adjournment having held that the time that intervened was sufficiently long-for the appellants to prepare their case and procure all the witnesses that they would have. Upon appeal by the appellants it was mainly contended: 25 (a) That the decision and/or order
the Court on the 17th August, 1977 for the non-adjournment
the hearing
the case was given in wrong exercise
its discretionary powers caused injustice to the appellants and amounted in fact to a denial
justice and 30 miscarriage
justice; and violated the right to a fair hearing safeguarded by Article 30
the Constitution. (b) That the trial Court was wrong in concluding that the claim
the respondents could succeed. Held,
adjournment: That the question whether an adjournment willbegranted or not is undoubtedly a matter
judicial discretion; that as such 32 35 1 CX.R. 5 10 15 Kier (Cyprus) v. Trenco Constructions it has to be examined on the particular facts
each case and not in abstracto; that whether an adjournment will be granted or not must always be considered in the light
the right to a hearing within a reasonable time as provided by Article 30, para. 2,
the Constitution and Article 6, para. 1,
The European Convention
Human Rights
1950, ratified by The European Convention on Human Rights (Ratification) Law 1962 (Law No. 39
1962); that the attendance
the witnesses sought to be brought before the Court could not be compelled by means
the Court's procedure and therefore matters should be delayed for the process to operate; that on the facts
the present case and taking into consideration the repeated opportunities—more than what anyone would expect— given to the appellants to make arrangements for the presentation
their case,there has been no wrong exercise
the Court's discretion.
the appeal; 20 25 30 That impossibilityof performancewasduetochanges in circumstances beyond the control
the parties; that, therefore, the legal situation created thereby comes within the ambit
subsection 2
section 56*
Cap. 149, that is, by reason
such events which the parties could not prevent, the performance
the acts agreed to be done under the contract became impossible and therefore the contract as such became void and so restitution could be claimed under section 65; that the legal foundation for such restitution are the provisions
subsection 2,
section 56
Cap. 149 which are satisfied by the factual findings
the trial Court; accordingly the appeal must be dismissed. Appeal dismissed. Cases referred to: International Bonded Stores Ltd. v. Minerva Insurance Co· Ltd.,
India v. Preety Kumar Ghosh
'Cap. 149 reads as follows: "56
some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful". 33 Kier (Cyprus) v. Trenco Constructions
the District Court
Nicosia (Stavrinakis, P.D.C. and Orphanides, S.D.J.) dated the 26th October, 1977 (Action No. 3339/75) whereby they were ordered to pay to plaintiffs the sum
£12,924.— 5 for work done and materials suplied in relation to the construction
two blocks
flats. M. Christofides, for the appellants. G. Pelaghias, for the respondents. Cur. adv. vult. 10 A. Loizou J. read the followingjudgment
the Court. This is an appeal against the judgment
the Full District Court
Nicosia whereby the appellants were adjudged to pay to the respondents the sum
C£12,924.— with interest thereon at 4% p.a. as from 26.12.1977 to the date
payment and costs. 15 The respondents are a building construction Company which has undertaken to construct for the appellants under a written agreement dated the 3rd May, 1972{exhibit 1)and on the terms contained in the document described as The Conditions
the Contract {exhibit 2) two main blocks
flats at Kyrenia 20 and to provide the necessary materials at the agreed price
C£198,360.—plus external work which,according to the respondents, was agreed at C£l8,945.— and according to the appellants at C£17,580.— The completion
the work was agreed to be done in 22 months for blocks known as D, 25 E, G, and 16months for blocks A & D,from the commencement
the building operations. None, however,
the buildings were completed on the agreed date for which there is a dispute as to who was responsible, and when the Turkish invasion took place this construction, although near in completion, 30 was neither fully completed nor delivered to the appellants. The respondents by their letter dated the 24th October, 1974, terminated the said contract. The reason given for such termination was the inability for their workers and site supervisors to proceed to the site
the works or to continue 35 work at the area as a result
the events that started in Cyprus on the 15th July, 1974, and the subsequent military Turkish invasion on the 20th July, 1974. It was also stated therein that the unfortunate situation had continued up to the date
the writing
that letter and itdid not appear that the prevai- 40 ling conditions would improve in the near future. 34 1 C.L.R. Kier (Cyprus) v. Trenco Constructions A. Loizou J. They further said that following the termination
the contract, the architect
the appellant, his quantity surveyors and the respondents should work together to prepare a final bill in accordance with the relevant articles
the aforesaid 5 Conditions
the Contract. In the meantime, however, they claimed payment
the aforesaid sum on the basis
the architect's payment certificate No. 13/260/39A/2. The details contained in this certificate issued by Mr. Alecos Gavrielides. the Supervising Architect, 10 on the 25.6.1975 were as follows: Retention under certificate No. 139/26 £9,918.Less down payment for purchases .
materials 15 Increase in labour costs for period 1.4.74—30.6.74 Balance 2,762.- £ 7,156.7- 5,758.£12,924.- The appellants failed to pay the aforesaid amount, hence the present proceedings. At this stage it is convenient to examine the first ground
20 appeal, that is, "that the decision and/or order
the Court on the 17thAugust 1977,for the non adjournment
the hearing
thecaseand/or thedismissal
theapplication
the appellant company for adjournment
the hearing— (a) was given in wrong exercise
its discretionary power; 25 (b) caused injustice to the appellant company and amounted in fact to a denial
justice and miscarriage
justice, and (c) violates the rights to a fair hearing safeguarded by •Article 30
the Constitution". 30 The relevant facts on this point are the following: This action was filed on the 30th day oif July 1975, by a specially endorsed writ under Order 2, rule 6,
the Civil Procedure Rules. An appearance was entered by the appellants—as defendants—on the 19th August, 1975. An application then 35 was filed by them ex parte for leave to issue and serve a third 35 A, Loizou J. Kier (Cyprus) v. Trenco Constructions
defence wasfiledwhich was withdrawn' and leave was granted to file the defence on the 21st 5 January 1977, by their present advocates who in the meantime had been appointed to act assuchin lieu
the original counsel who· had appeared for the defendants. On the 2nd October 1976,an application wasfiledtofixa date for trial and thecase wasfixedfor mention on the 22nd November, 1976, when the 10 case wasadjourned for hearing to the 7th and 8th March 1977. The two consecutive days given by the Court being obviously an indication that the case was to be really heard on those days beinggiven preference in that way to other litigantswhose cases could have been fixed on these two days instead. On 15 the 7th March 1977, counsel for the appellants stated to the Court that he had informed his clients who were abroad since November 1976, but so far he had no instructions from them and under the circumstances he felt bound to apply for an adjournment. Counsel for the respondents-plaintiffs did not 20 object to a short adjournment but he made it clear that he would strongly object to any other adjournment based on the same,ground. The case wasthen fixed for hearing once more on the 6th April, 1977,counsel for the appellants applied once more for an adjournment as he had not until then received 25 any reply from his clients and the case was adjourned to the 29th April 1977, for mention and for a date
hearing to be given, with costs against the appellants. A date
hearing was then given on the 9th May 1977, and the case was fixed in the presence
both counsel on the 22nd June 1977, for 30 hearing, when once more counsel for the appellants—applied for another adjournment ashewas still awaiting further instructions. The case was once more adjourned for hearing to the 5th July 1977, with· costs against the appellants. The hearing commenced, the Court heard two witnesses 35 andasthecross-examination
theArchitect,AlecosGavrielides (P.W.2) would be long, adjourned the case for hearing to the 8th July 1977, when the case for the plaintiffs was concluded by the cross-examination and re-examination
this witness. The time being 12.45 the case was adjourned to be continued ^Q on the,17th August 1977. On that date counsel for the appel36 1 C.L.R, Kier (Cyprus) v. Trenco Constructions A. Loizou J. lants felt once more bound to apply for an adjournment. The reasons he gave were that upon exchange
views with his clients it was decided that the only witness that they could call was a certain Felix Reding who was the Director
the appel5 lants and was handling the whole matter on theii behalf at all relevant times. He could not, however, be traced and the last country they had looked for him wasBelgium where, according to their information, he was staying but he could not be found there also. 10 Also they intended to adduceevidencefrom Kyrenia regarding damages to the buildings between the Turkish invasion and the termination
the agreement. Regarding this evidence it was obvious that they were facing "a physical impossibility". Counsel for the respondents/plaintiffs objected once more 15 to the adjournment, argued that the first ground upon which the adjournment was asked was not valid as they had ample time to prepare their case, they knew who would be needed as witnesses and they should have seen that they were available on the date
the hearing. On the other hand he stressed 20 that this action was not for extras but for the retention money and the cost
the increase
labour and went on to point out that in any event the matters for which they intended to call evidence were irrelevant to the issues before the Court. The ruling
the Court was as follows: 25 30 35 "This case has been on the hearing agenda since March, 1977, and for various reasons adjournments were given at the request
the defendants. Eventually the hearing commenced on the 5th July, 1977, and it continued on the 8th July, 1977. At the end
the case for the plaintiff, the case was adjourned to continue during the Court vacations, on the 7th August, 1977, that is, to-day. It has been stated by learned counsel for the defendant that priority has been given to this case. On this we must make it quite clear that no priority whatsoever was given. The case was fixed for hearing and once it started, it was better to finish it as soon as possible and to avoid a long interval between hearings and this is the main reason why the case was fixed during Court vacations. The time, however, that intervened, was sufficiently long for the37 A. Loizou J. Kier (Cyprus) ?. Trenco Constructions
course
evidence from Kyrenia and this in any event is not based on something concrete. We have considered all the aspects
the application for adjournment made by the defendant and we are
the opinion that another adjournment is not justified and, therefore, we refuse the application". 5 Upon that counsel for the appellants said that under the circumstances he had no witnesses to call, he had no other 10 evidence except the documents which were produced; a short adjournment was granted to him in order to go through tnc exhibits and then the hearing was resumed when certain documents were produced by consent and one exhibit already produced was withdrawn, whereupon both counsel addressed the 15 Court. The principles that should govern the exercise
a Court's discretion in granting or refusing an adjournment have been reviewed recently and at length by Savvides, J., in the cases
International Bonded Stores Ltd. v. Minerva Insurance Co. 20 Ltd.
cases that delays in the hearing
a case 25 are highly undesirable and that adjournments should be avoided as far as possible and that only in unusual circumstances they must be granted. The reason for this, is that it is in the public interest that there should be some end to litigation and, furthermore, the right
a citizen 30 to a fair trial within a reasonable time according to the Constitution and the Courts should comply with these constitutional provisions with meticulous care. The discretion
the Court in granting an adjournment should be exercised in a proper judicial manner and an order for 35 an adjournment should not be made if there is danger that the rights
a party before the Court will be prejudicially affected by such adjournment". Reference may also be made to the judgment
this Court 38 1 C.L.R. Kier (Cyprus) v. Trenco Constructions A. Loizou J. in the case
Michael Hjipanayi Tofas & Another v. Aglaia Agathangelou
the Court's discretion with regard to adjournments were reviewed. 5 The question whether an adjournment will be granted or not is undoubtedly a matter
judicial discretion. As such it has to be examined on the particular facts
each case and not in abstracto; whether an adjournment will be granted or not must always be considered in the light
the right to a 10 hearing within a reasonable time as-provided by Article 30, para. 2,
our Constitution and Article 6, para. 1,
The Euro pean Convention on Human Rights
1950, ratified by The European Convention on Human Rights (Ratification) Law 1962 (Law No. 39
1962). 15 20 On the facts
the present case and taking into consideration the repeated opportunities—more than what anyone would expect—given to the appellants to make arrangements for the presentation
their case, we find that there has been no wrong exercise
the Court's discretion. One should not also lose sight in this case
the fact that the attendance
the witnesses sought to be brought before the Court could not be compelled by means
the Court's procedure and therefore matters should be delayed for the process to operate. This disposes
the first ground
appeal. 25 The next ground
appeal turns on the issue by the Super vising Architect
a payment certificate in respect
the reten tion money and whether the correct procedure provided for in the agreement between the parties was followed or not. The power and authority
the Supervising Architect who was 30 nominated under the contract to issue certificates for payment, are stated in Article 13
exhibit 2. The certificate which has been· produced as exhibit 4 is in respect
an amount
C£12,924.—which is made up
two items, the first one relates to the refund
retention money and the second to payment 35
increases
labour cost. With regard to the payment
retention money, the relevant provision is Article 13, para.
article 9(b)
the appendix, be entitled to payment
the retention money on the practical completion
the works, less the sum fixed in the appendix (not exceeding 2%
the amount
the contract"). 5 And para, (b)
εργολάβος 10 παραλείψη να συμπλήρωση τάς εργασίας κατά την ήμέραν τήν καθοριζομένην είς τό παράρτημα ή εντός οιασδήποτε παραταθείσης προθεσμίας συμφώνως προς τήν παράγραφον (ε) τοΰ παραρτήματος, ό αρχιτέκτωνπιστοποιήσει εγγράφως δτι κατά τήν γνώμην του αΰται όφειλον νομικώς νά εΐχον 15 συμπληρωθεί, τότε ό εργολάβος θά πλήρωση ή θά παρα χώρηση είς τόν εργοδότην τό αναφερόμενου ποσόν άνω, την καθοριζομένην περίοδου είς τό παράρτημα ώς χρέος και ώς έκτιμηθεΐσαυ άποζημίωσινδιατήνπερίοδουδιαρκούσης της οποίας α'ι ρηθεϊσαι έργασίαι θέλουσι οΰτως παραμείνουν 20 ή ήδη παρέμειυον άποτελείωτοι καΐ 6 εργοδότης δύναται νά αφαίρεση τάς τοιαύτας αποζημιώσεις από οίαδήποτε ποσά οφειλόμενα είς τόν εργολάβου. {"Damages for non-completion: If the contractor fails to complete the works by the date for completion stated 25 in the appendix or within any extended time fixed under clause (e)
these conditions and the architect certifies in writing that in his opinion the same ought reasonably so to have been completed, then the contractor shall pay or allow to the employer a sum calculated at 30 the rate stated in the said appendix as liquidated and ascer tained damages for the period during which the works shall so remain or have remained incomplete, and the employer may deduct such sum from any monies due or to become due to the contractor under this contract"). 35 It is clear from the above and that was the approach
the trial Court that the contractor was entitled, upon the actual completion
the work, to the retention money less a certain percentage specified in the contract unless the contractor was 40 1 C.L.R. 5 10 15 20 25 30 35 Kier (Cyprus) v. Trenco Constructions A. Loizou J. liable to pay damages to the owner-employer for delays accord ing to an assessment to be made by the Architect. In such a case the owner-employer might deduct the amount
damages from the amount kept by him as retention money. The trial Court,however, pointed out that the situation has been affected and changed by the Turkish invasion and things turned out not to be so simple as would have been in normal circumstances and had this to say: "Firstly; although admittedly there was a delay, yet the contractor was not responsible for it and the architect did not make any assessment under paragraph (b)
Secondly; the completion
the work has been rendered impossible on accountof the Turkish invasion and, therefore, the contingency rendering the payment
the retention money operative could not and cannot be performed. Thirdly; thecontract hasbeen rightfully terminated by the contractorwithout anyword
protest from the owner/employer and,therefore, it is safe to assume that all provisions, conditions and terms
the terminated contract ceased to have any effect". It then concluded that "the right
the contractor, if any, as to the recovery
the retention money, is not conditional on the issue
a relevant certificate by the architect. It is a right which arose after the termination
the contract and not during its subsistence". The trial Court further took it that perhaps if the contract was not terminated, the payment
that sum and the issue
the relevant certificate would undoubtedly be covered by the teiras and conditions
the contract but not so after the contract itself with all its terms and conditions ceased to exist. And went on to say: "Nevertheless, the archi tect issued the said certificate and even if it might not per se create legal rights it contains a statement
his expert opinion which was verified by his own evidence in Court irrespective
the legal aspect
the case". The procedure provided by the contract between the parties is to be found in para.(b)
42 1 C.L.R. Kier (Cyprus) v. Trenco Constructions Λ. Loizou J. the contracting parties the common rights and responsi bilities will be as follows, i.e. 5
work completed at the date
deter mination as stated above in accordance with article 8
this contruct. (II) The total value
work begun and executed but not completed at the date
the determination the value being ascertained in accordance with such proper manner as provided for in article 8
this contract. 15 20 (III) The cost
materials or goods properly ordered for the works for which the contractor shall have paid or for which the contractor is legally bound to pay and on such payment by the employer any materials or goods paid for shall become the property
the employer. (IV) The reasonable cost
removal under para (I)
this sub-clause. (V) Any direct loss and/or damage caused to thecontractor by the determination plus reasonable profit. 25 30
and shall have a lien upon all unfixed goods and materials, which may have become the property
the employer under this contract until payment
all monies due to be contractor from the employer"). This procedure provides for a method
liquidation and settlement
accounts without any reference at all to the reten tion money, and the trial Court rightly pointed out that the respondents were not claiming a final settlement
accounts 35 or the payment for extra work which according to the evidence
the Supervising Architect represented a substantial sum
money by far exceeding the amount kept by the appellants 43 Λ. Loizou J. Kier (Cyprus) v. Trenco Constructions
labour costs. The trial Court found that this procedure was impossible at present or in the near foreseeable future to follow in view
the situation created after the Turkish invasion and decided the case on the provisions
section 65
our Contract Law, Cap. 149, which was found to be applicable and which reads as follows: "When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it". After dealing with the legal position especially as to the meaning
the term "received any advantage" as interpreted and commented upon by reference to authorities in Pollock & Mit/la, 6th Ed., p. 379, had this to say on the position: 5 10 15 "With the above background in mind, we may say that in this case the ictention money is an advantage the defen dants are holding not under any proprietary right but 20 as security or rather as a lever to exert pressure upon the contractor to put right certain minor breaches
the contract associated mainly with bad workmanship. Since the contracted work has not been completed and cannot be completed for as long as the political situation prevailing 25 in the island persists and since the contract was rightly terminated by the contractor/plaintiffs, it would be unfair for the defendants to retain such a large sum
money which, according to the terms
the contract is payable upon a contingency unlikely to occur, and even if it does 30 occur it will be too late as the contract had been terminated and, therefore, this matter would have to form the subjectmatter
a new agreement. Moreover, the settlement
accounts and the liquidation
mutual rights and obli gations, as provided by the procedure laid down in the 35 contract, could not fully take place and according to the facts the defendants still owe to the plaintiffs a large sum
money for extra work which by far exceeds the amount claimed by the plaintiffs. We feel that the contractors are entitled to the amounts claimed which, moreor less, 40 44 I C.L.R. 5 10 Kier (Cyprus) v. Trenco Constructions A. Loizou J. are liquidated, they are approved in a way by the supervising architect, and we consider it only fair and just that they should be returned to the plaintiffs. When accounts arc taken as provided by the contract, any part
the retention money which ought not to have been paid over to the plaintiffs, may easily be deducted from their future claim for extras. We have dealt in extenso by reference to the retention money alone and we have deliberately avoided any mention to the increase
labour for the simple reason that this part
the claim presents no problem being clearly payable to and recoverable by the plaintiffs". Counsel for the appellants has submitted that the trial Court was wrong in concluding that the claim
the respondents 15 could succeed under the provisions
section b5 ol" the Contract Law, Cap. 149 Section 65 contains the principle
restitution after bcneiit has been received and the agreement is later disco\ered to be void. {Dominion
India v. Preety Kumar Ghosh
the section is the doctrine
restiuo in integrum. It docs not make a new contract between the parties but only provides for restitution
the advantage taken by a party under the contract. Unless the Court can. having regard to circumstances
the case, restore the parties to their original position, section 65 would not be applicable. The section is not wider in scope than the English doctrine
restitution. The obligation to pay compensation under section 65 is quite different from a claim under the contract itself and the two cannot co-exist. Restitutionary remedies, as quasi-contractual, only arise where the original contract is put an end to or contracts become ineffective due to mistake or impossibility or lack
writing or lack
capacity". As to when an agreement becomes void because the original contract wasput to an end or it became ineffective due to impos45 A. Loizou J. Kier (Cyprus) v. Trenco Constructions
the Contract Law which provides as follows: "56
some event which the promisor could not prevent,unlawful, becomes void when the act becomes impossible or unlawful. 5
the promise". As stated in Mullet (supra) at pp. 402-403: •'Thedoctrine
frustration comesinto play when a contract 15 becomes impossible
performance, after it is made, on account
circumstances beyond the control
parties or the change in circumstances makes the performance
the contract impossible. In fact impossibility and frustration are
ten used as interchangeable expressions. 20 The changed circumstances make the performance
contract impossible. In India, the lawdealing with frustration must primarily be looked at as contained in sections 32 and 56
the Contract Act. The rule in section 56 exhaustively deals, with the doctrine
frustration
25 contracts and it cannot be extended by analogies borrowed from the English Common Law. The Court can give relief on the ground
subsequent impossibility when it finds that the whole purpose or the basis
the contract has frustrated by the intrusion or occurrence
an 30 unexpected event or change
circumstances which was not contemplated by the parties at the date
the contract". In the present case the trial Court has concluded that because
the conditions prevailing in Kyrenia since 1974, the contract was impossible
performance. Obviously that impossibility 35
performance was due to changes in circumstances beyond the control
the parties. In our view, therefore, the legal situation created thereby comes within the ambit
subsection 46 1 C.L.R. 5 10 15 20 Kier (Cyprus) v. Trenco Constructions A. Loizou J. 2
section 56
Cap. 149, hereinabove set out, that is, by reason
such events which the parties could not prevent, the performance
the acts agreed to be done under the contract became impossible and therefore the contract as such became void and so restitution could be claimed under section 65. In other words, the legal foundation for such restitution are the provisions
subsection 2,
section 56
Cap. 149 which are satisfied by the factual findings
the trial Court. The fact that not a complete restitution was claimed but only partial and in particular with regard to a specific item, does not change the situation. It was made abundantly clear that the appellants owed considerable money to cover, if necessary, the purpose for which the retention money was provided for in the contract. namely, as a guarantee for any failure by the contractor. The rest
the accounts remained, according to the trial Court, outstanding and the rights
the parties in them were treated by the trial Court as not affected by these proceedings. As it put it "When accounts are taken as provided by the contract any part
the retention money which ought not to have been paid over to the plaintiffs may easily be deducted from their future claim for extracts". For all the above reasons this appeal is dismissed with costs. Appeal dismissed with costs. 47
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.