clr/1984/1984_1_403.pdf

(1984)which they relied upon were apparent on the face of the proceedings, though no facts were so apparent. (iii) Thattheaffidavit which was sworn by counsel who appears for the plaintiffs and which was filed in support of the application for judgment in default of appearanceprays forjudgment in his favour and not in favour of the plaintiffs. 5 (

1. iv)There has not been compliance with the Exchange Control Law. Cap. 199, and the Regulations made thereunder. 10 (
2. b)That defendants had a prima facie defence. Held, (Πthatif a defendant chooses notloenteranappearance or fails to do so within the time limitpro\ided by theRules,and unless theCourt feels that further proof of theclaim is required, 15 it is not necessary for the Court to make special directions how the plaintiff shall have to prove bis claim. (See rule 41 of the Cuprus Admiralty Jurisdiction Order, 1893).

(2)That if the petition filed by the plaintiff clearly stated the particulars of his claim, it suffices if same are supported by the 20 necessary documents,if any are required, for proving the claim; thatwhetherthese documentsareproducedby awitness verifying them personally or by affidavit evidence, makes no difference as to their probative value, since the defendant has failed to enter an appearance (rule 116 of the Cyprus Admiralty Jurisdiction 25 Order, 1893, not applicable).

(3)That inview of the contentsof the petition,theaffidavit of counsel for the plaintiffs sworn by him and the documents filed in support of theclaim of theplaintiffs, therewas ample evidence for the Court to give judgment in favour of the plaintiffs. 30

(4)That though the affidavit of counsel is very badly drafted, he did not mean to signjudgment in his favour but in favour of his client.

(5)Thatthenoncompliancewith the Exchange Control Rules does not constitute a fundamental defect which madethe whole proceedings a nullity.

(6)Thatfrom theaffidavits andthevarious documents attached 404 35 1 C.L.R. 5 10 Atlantic v. Frio Shipping theretothis Courthascometo theconclusion thatthe defendants have madeouta prima facie defence andthattheyare entitledto have the judgment set aside and be given leave to defend the action; and that, accordingly thejudgment in the action must be set aside on condition that the applicants-defendants furnish security in the form of a Bank guarantee in the sum of U.S. dollars 95,000.00. Applicationgranted. Cases referred to: Spyropoullosv. Transavia Ho/land N.V.Amsterdam

(1979)I C.L.R. 421. Application. Application by defendants for an order setting aside the judgment given against them after they had failed to entei an 15 appearance within the prescribed time limit. M. Montanios with P. Panayi {Miss), for the applicants. P. Petrakis, for the respondents. Cur. adv. vult. 20 DEMETRIADES J. read the following judgment. By the present application theapplicant:, defendants inAction No. 115/83, pray for an ordei that thejudgment given against them after they have failed to enter an appealance within the piescribed time limit foi doing so be set aside. Thefacts which led totheinstitution of thepresent proceedings 25 aie in brief the following: The plaintiffs, who are the re­ spondents in this application, by their action claim against the defendant;-applicants the sum of U.S. $95,110.37 for "bunker, fuel and/οι gas oil supplied to thevessel 'CABO FRIO' property of the defendants foi her operation and maintenanceat the pott 30 of Poit Said Egypt, on or about the 19th May, 1982, and on oi about the 22nd June, 1982, at the request and/οι to the ordei of her owners and/or theii servants and/or agenfc." It is not in dispute that the defendants-applicants are a com­ pany iegistered in Cyprus and thatat all material times they were 35 the owners of the ship "CABO FRIO". The wri* of summons was issued on the 29th April, 1983, and was duly served on the applicants at theii registered office. The applicants did not enter an appearance on the day they were 405 Dcmetriades J. Atlantic v, Frio Shipping

(1984)commanded to do so by the writ of summons, that is on the 14th May, 1983, and the Couit, after an application filed by the plaintiffs for ditections, ordeied on the 14th May, 1983, thatthe petition be filed within three days. On the 16th May, 1983, the plaintiffs filed an application which was accompanied by an 5 affidavit swotη by Mr. Petros M. Petrakis, advocate foi the p'aimiffs by which they prayed foi judgment against the defend­ ants as pei claim in default of appearance and the Court on the following day, that is on the 17th May, 1983, gavejudgment for the plaintiffs as per claim with legal interest and costs. 10 On the 4th June, 1983, the applicants filed an application accompanied by an affidavit sworn by Miss P. Panayi, an advo­ cate employed in the firm of Messrs. Montanios&Montanios, counsel for the applicants, by which they piayed for the setting aside of the judgment given on the 17th May, 1983. On the 15 12th July, 1983, the applicants discontinued their application but on the same day they filed another application, the present one, by which they pray for the setting aside of the judgmeni given in this action against them on the 17th May, 1983. Counsel foi the applicants submitted that the judgment given against them should be set aside for the following grounds: 20 (

1. a)That the judgment is' irregular, and (
2. b)that they had a prima facie defence. With regaid to the first ground, counsel for the applicants submitted that if thejudgment is found to be iiregular, it muttbe 25 set aside ex depitojustitiae, in other words, as of right. On this issue he put forward the following arguments: (
3. i)The plaintiffs did not obtain the leave or the directions of the Court how to prove theii case, i.e. whether by or through an affidavit, contrary to the provisions of rule 116 of the Cyprus Admiralty Rules. (
4. ii)The plaintiffs in their application for judgment in default of appearance simply said that the facts on which they relied upon were apparent on the face of the proceedings, though no facts were so apparent. (iii) That the affidavit which was sworn by counsel who appears for theplaintiffs and which was filed in suppoit 406 30 35 1 CX.R. Atlantic v. Frio Shipping Demetriades J. of the application forjudgment indefault of appearance prays for judgment in his favour and not in favour of the plaintiffs. 5 (
5. iv)There has not been compliance with the Exchange Control Law, Cap. 199, and the Regulations made thereunder. As regards the first submission of counsel for the applicants on this ground 1 am of the opinion that there is no meiit in it. Rule 41 of the Cyprus Admiralty Jurisdiction Order, 1893, 10 provides: 15 "41. If at the time fixed by the writ of summons for the appearance of the parties the Plaintiff appears but the Defendant does not appear, then, upon proof of the due serviceofthe writ ofsummons, the Plaintiff may proceed to prove his claim and the Court or Judge may either give judgment for any remedy or relief which the Plaintiff may appear to be entitled to or the further hearing of the action may be adjourned." Inthe light of the wording of this rule, Iam of the view that if 20 a defendant chooses not to enter an appearance or fails to do so withinthe time limit provided,bythe Rules,and unlessthe Court feelsthat further proof of the claim isrequired, itisnot necessary foi the Court to make special directions how the plaintiff shall have to prove his claim. 25 It is, furiher, my view that if the petition filed by the plaintiff cleaily stated the particulars of his claim, it suffices if same are supported by the necessary documents, if any are required for proving the claim. Whether,these documents are produced by a witness verifying them personally or by affidavit evidence, 30 makes no difference as to their probative value, since the defendant has failed to enter an appearance. Rule 116 makes provision for regulating the proceedings in contested cases on applications and does not come into play in the proof of uncontested claims. 35 With regard to the second submission of counsel for the applicants-defendants, I am of the opinion that in view of the contents of the petition, the affidavit of counsel for the plaintiffs sworn by him and.the documents filed in support of the claim of 407 Demetriades J . Atlantic Λ. Frio Shipping

(1984)the plaintiffs, there was ample evidence for the Court to give judgment in favour of the plaintiffs. Coming now to the third submission on the ground of irregu­ larity of thejudgment, it is obvious that though the affidavit of counsel is very badly drafted, he did not mean to sign judgment in his favour but in favour of his client. 5 With regard tothe last submission of counsel for theapplicants -defendants on the ground cf irregularity, I hav* only Tomake leference to the case of Spyropoullos v. Transavia Holland N.V. Amsterdam

(1979)1C.L.R. 421, where it was held that the non- 10 compliance with rule 3 of the Exchange Control Rules docs not constitute a fundamental defect which made the whole proceed­ ings a nu'iity and which could not be waived by the subsequent appearance and the taking of the steps by the appellants as defendants in the action; that there is no inherent illegality in 15 omitting to refer to the possibility of paying into Couit the liquidated demand instead of paying same to plaintiff or his advocate; that th? said defect is an 'negularity that brings the matter within the ambit of Order 64 of the Civil Procedure Rules as being a mere non-compliance with the Rules; and 20 that, accordingly, contention (a), i.e. that the non-compliance with the Exchange Control Rules has rendered the writ issued a nullity and that the trial Judge was wrong in considering same as a mere irregularity which had been waived, must fail. This last submission of the applicants-defendants, therefore, fails. I now cometothesecond ground putfoiword by theapplicants -defendants for thesetting aside of thejudgment, namely because they have shown by their affidavits filed in support of their application that they have a prima facie defence. 25 30 The defendants-applicants have submitted that they were never in contractual relationship with the plaintiffs and this submission is based on a number of invoices produced by them and inwhich it appeals thatthecreditorsfoi thevalue of bunkers supplied to "CABO FRIO" and a number of other vessels were 35 a company under the name of "Transcanary Cargadooisbediijf B.V.", of Rotterdam and not the defendants. Fuithei, they have produced a numbei of telexes in which it appeals that the 408 1 C.L.R. Atlantic \. Frio Shipping Demetriades J. order for the supply of bunkers to the vessel was given by a company named "Castro (London) Ltd." In addition, the defendants-applicants have pioduced two othei invoices in which it appears that the costs of the bunkeis 5 that were supplied by the plaintiffs to the vessel and with the value of which the plaintiffs debited "Transcanaiy", are charged in an invoice issued by the latter to Messts. Castro(London) Ltd. and/or Fruit Tianspoitation FRUCASA Ltd., of London. By this invoice "Transcanary" demand payment of 10 (

1. a)the value of gas oil delivered to the vessel at Port Said on 22nd June, 1982, and (
2. b)a commission at $200 per m/t. From the invoces filed it appears that "Transcanary" debited "Castro (London) Ltd.," with whom they had dealings for pay15 ment of expenses, collection of freights and other dealings regarding this vessel, as well as other vessels; and that the plaintiffs-respondents were charging the accounts of "Transcanary" with interest for payments overdue for more than 30 days from the date of the delivery of the bunkeis. By the telexes 20 produced by the applicants it appeals that "Castro (London) Ltd." were requesting "Tianscanary" to make funds available (
3. a)to Jeddah sc that the aricst of "CABO FRIO" will be avoided, and 25 (
4. b)pay $23,000.00 for the expenses of the passage of the vessel through to Canal Suez. Having considered the contents of the telexes and the various invoices produced and having compared them with exhibits 1 and 2attached to the affidavit filed in suppoit of the application to signjudgment, and having,also,inmind that the said exhibits 30 are not signed by the master of the vessel or anybody on his behalf or on behalf of the defendants, I have come to the conclusion that the defendants have made out a prima.facie defence and that they are entitled to have thejudgment set aside and be given leave to defend the action. 35 The next question which poses foi decision is whether the leave to defend :should be on terms. Counsel for the applicants submitted that rule 44 of the 409 Demetriades J. Atlantic \. Frio Shipping

(1984)Cyprus Admiialty Jurisdiction Order, 1893, which provides that a judgment may be set aside on such terms as to the payment of costs or otherwise as shall appear to be just, appears from its wording to limit theword "terms"to thepayment of costsrathet than to ordering the defendants to file secuiity foi the payment 5 of the amount of the judgment. Hcfuithei submitted that ncithci eo^is should bu awaided ίο the lespondenU-pIaintifl's nor the defendants-applicant;» should be asked to furnish security, because tK jespondcrts-plaintiffs instituted these proceedings in bad faith and in. abuse of the 10 process of the Court in that though they had failed in obtaining a mareva injunction in an action brought by them in England against the applicants-defendants and despite the fact that they had undertaken not to make any other application without notice to the parties, they filed the present action in Cypius in 15 breach of theii said undeitaking, as a result of which they vveie able, aftei they obtained judgment, to register the Cyprus judg­ ment in England and obtain an order in their favoiu, by which the defendants were restrained from removing frcm England, disposing of or dealing with any of thui assets not exceeding 20 U.S. $100,000,

1. I am sure that the matcva injunction granted on the basis of the Cypius judgment will immediately cease to have any foice once the judgment given in this action is t>et aside. With regard to the submission thai tin filing by the plaintiffs 25 of the present proceedings shows bad faith on their behalf and that same is an abuse of the process of the Court, Isec nothing wrong with the action filed by the plaintiffs. The defendants are a company registered in Cyprus and Iwould not be piepaied to considei that a foreigner cannot elect to bring pioceedings 30 here where one may reasonably believe that the company has its main assets, and it will be easiei to execute any judgment obtained in his favour. In the result, Ifind thatjudgment in the action be set aside on condition that the applicants-defendants furnish security in the form of a Bank guarantee in the sum of U.S. $95,000.
2. 35 Security to be filed within 45 days from today. No order as to costs. Application granted with no order as to costs. 40 410