clr/1982/1982_1_382.pdf

(1982)1982 June 22 [HADJUNASTASSIOU, J.] MIDDLE EAST ACCOUNTING CO., Plaintiff, v.

1. COMARINE LIMITED,
2. TRAFRUME LINES S.A., Defendants. (Admiralty Action No. 461/78). Admiralty—Practice—Unconditional appearance—Subsequent addition of newplaintiff on the application ofplaintiff and with the consent of defendants—No direction, upon the approval of the joinder, entitling the defendant to enter a conditional appearance—Defendant has no right to condition his appearance subsequently. 5 The defendants in the above action at first entered a conditional appearance but at a later stage they entered an unconditional appearance and they reserved, at the same time, the right to raise at the trial an issue of substantive jurisdiction. Subsequently on the application of the plaintiffs and with the consent 10 of the defendants Edward Kerope Kasparian of Beirut, was added as plaintiff. When service of the amended proceedings was effected on the defendants they sought to enter a conditional appearance to the claim of the new plaintiff. On the question whether thedefendants could entera conditional appearance: 15 Held, that having regard to the unconditional appearance entered by the defendant, in the first place and the absence of any direction, upon the approval of the joinder, entitling the defendant to enter a conditional appearance, the defendant 20 has no right to condition his appearance subsequently which is, for all purposes, an appearance in the cause; accordingly the application must fail. Application dismissed. 382 1 C.L.R. 5 Middle East Accounting τ. Comarine Application. Application by defendants for leave to enter a conditional appearance to the claim of the added plaintiff. L. Papaphilippou, for the plaintiffs. Fr. Saveriades,for defendant
3. M. Vasiliou, for defendant
4. Cur. adv. vult. HADJIANASTASSIOU J. read the following ruling. Before dealing with the substance.of the application, it may be appro10 priate to refer to the background of the case as a necessary aid for a proper evaluation of the issue posing for consideration. 15 20 25 30 The defendant, at first entered a conditional appearance, a stand that he abandoned at a later stage, submitting to the jurisdiction by entering an unconditional appearance, reserving at the same time the right to raise at the trial, an issue of sub­ stantive jurisdiction in the sense of the competence of thecourt to take cognizance of thedispute. Subsequently, anapplication was made for the addition of a plaintiff, for the sake of the effective and final determination of all issues relevant to the dispute, pursuant to the provisions of rules 29 and 30 of the Cyprus Admiralty Rules. These rules give a widejurisdiction to the court to sanction the joinder of a party, if it is judged necessary, in the interest of the effective determination of the dispute. Rule 29 reproduces in substance Order 16 r. 11 of the old English Rules of the SupremeCourt. In theWhite Book in a note explanatory of the rule, it is stated that the discretion to ordei ajoinder does notauthorize departurefrom the framewoik of the cause, as originally defined. The joinder was allowed without the imposition of any special terms, as the Court might impose in its discretion. In fact, thejoinder was made by the consent of the plaintiff and defendants 1 and
5. When service of the amended proceedings was effected upon thedefendants, heclaimed a right toenter a conditionalappear­ ancetotheclaimol thenewplaintiff. Andwhat Imust tesolve, 35 is whether such anoptionisopentothedefendant. The answer is, in myjudgment, in the negative, having regard to theuncon­ ditional appearance entered by the defendant, in the first place, and secondly, absence of any direction upon the approval of thejoinder,entitlingthedefendant toenter a conditionalappear383 Hadjianastassion J. . Middle East Accounting v. Comarine

(1982)ance. In the absence of such a liberty, the defendant has no right to condition his appearance subsequently which is, for all purposes, an appearance in thecause. From that cause, there can be no substantial departure for the reasons above indicated. After all,the addition wasordered for thecomplete 5 disposal of the cause previously defined. The party added is the owner of the plaintiff firm. For the reasons above given, the application is dismissed with costs in favour of the plaintiffs. Application dismissed withcosts. 10 384