(1987)1987June25 [A.LOIZOU,LORIS,STYLIANIDES,JJ.) ANDREASKYRIACOU, Appellant-Applicant, v. CHRISTOFOROSLEONTIOU, Respondent (CaseStatedNo. 235). Rent control — TheRent Control Law23/83 — Whether in granting an order of ejectment the Rent Control Law may, in addition to compensation under section 12orsection 13,impose acondition thatduring theperiod ofthestay of execution of the order, tfie tenant should not pay any rent — Question answeredin thenegative, assuchacondition isnot warranted byanylawand it contravenes section 11(2}ofLaw 13/83 — Thephrase <$uch termsasthe Court thinks fit»in section 11
(2)doesnot empower theCourt toimposesuch a condition. Appeals—Costs—Interference — Principles applicable. 5 bythisCourt with anordermadebythetrial Court 10 Costs—Principles governing theexerciseofthediscretion indepriving asuccessful litigant ofhiscostsorin ordering asuccessfulplaintiff topay defendant'scosts —The discretion should not be exercised according to private opinion, sympathy or benevolence,butjudicially accordingto fixed principles—Rent Control cases—The practice thatcostsnormally follow theeventneednotbe 1 5 followed in proceedings under theRent Control Law. The trial Court granted an order of ejectment, but ruled that during the periodofitsstayof execution(1.7.85-31.10.85)thetenantshouldnotpayany rent and that the costs of the proceedings should be paid by the successful applicant«onaccountofthepeculiarityofthecaseandbecausethejudgment 2 0 benefits really the landlord, whereas it will create financial problems for the respondent». Hence the present appealbyway of casestated, hmustbe notedthat the tenant was,also,awardedascompensationasumequivalentto 18months' rent,thatisthemaximum allowedby law inrespect of shops. Held,allowingtheappeal:
(1)Thetermastothenonpaymentofrentisnot warranted by the provisions of any law and contravenes the provisions of 420 25 1C.L.R. 5 10 15 20 25 Kyriacouv. Leontfou section 11
(2)*of the RentControl Law.Thephrased therein «andsubject to such terms asthe Court thinksfit»does not empower the Court to relieve a tenant from the obligation to pay rent in addition to his receiving compensation, ifcompensation isjustified, undersection 12orsection
- If that was possible it would amount to an increase of the maximum limitof compensation provided bysection
- {2)The matter of costs isa matter of judicial discretion, which, however mustbeexercisedjudicially.Nodoubtasuccessful litigantmaysometimes be deprived of hiscostsand, moreover, asuccessful plaintiff maybeordered to pay m e c o s t s°*me defendant. Neitherprivateopinion norbenevolence nor sympathy comewithinthe fixed principlesuponwhichthejudicial discretion may be exercised indepriving a successful litigant of hiscosts;and more so thesefactorscannotbeinvokedinordertoimposeuponasuccessful partythe burden of payinghisopponentscosts.
(3)ThisCourt does not interfere with anorder related tocostsunlessthe appellant satisfies it that the discretion of the trial Court was not exercised judicially and therefore the trialjudge contravened the laworhisorder was made on a misconception of fact or that the appellant was ordered to pay costsincurredoroccasionedwithoutsufficient reasonbyanotherparty(Order 35 Rule20ofthe CivilProcedure Rules),exceptforsome reason connected withthecase.
(4)In thiscase the trial Court did not exercise itsdiscretion judicially, but according to private opinion and out of sympathy and benevolence to the tenant. Moreover, itsorder imposes on the appellant an additional burden, beyond thelimitsofcompensation provided bythelaw.
(5)Though normally costs follow the event, yet inproceedings under the RentControl Lawsthatpractice need notbe followed. Appealallowed. Noorder astocostshereandin the Courtbelow. 30 Casesreferredto: London WelshEstatesLtd.v.Philip, 100L.J.K.B.449; Eleftheriou v.RousouandAnother,23C.L.R.p.191; 35 CMIService Cooperative Society v. GeneralSteam Navigation[1903] 2 K.B.756CA MayorofBristolv.G.W.Ry[1916]W.N.47; Robertsonv.R.{1881}6P.D.128; *Quotedatp.423. 421
(1987)Kyriacouv. Leontiou George Gi^fcys ν loannisloannides,24 CLR ρ 220, Galatanobsν PolemitisandAnother, 20 CLR Part11 ρ 70, Electnaty Authonty ν Giorgalletosand Others[1972) 1C LR 77, HjiCostaν i4nasiassiades
(1982)1CLR 296 Casestated. 5 Case stated by the Chairman at the Rent Control Court of Limassol - Paphos in respect of his decision issued in an application by Andreas Kyriacou against Christoforos Leontiou for anorderof ejectment oftherespondentfrom ashop whereby ingrantingtheorderofejectmentandorderingastayofexecution 10 of such order from 1.7.85 - 31.10.85 he imposed a term in addition to an award of compensation of £270 in favour of the respondent that during the period of the stay the respondent should notpay rent,andorderedthatthecostsshould be paidby thesuccessful applicant. 15 D.Koutras, for theappellant. Noappearancefor therespondent. Cur. adv. vult. A.LOIZOUJ.gavethefollowingjudgmentoftheCourt.Thisis an appeal against two partsof thejudgment of the RentControl 20 CourtofLimassol -Paphos,sittingatPaphos.Thefirstoneisthat by which itwas directed thatduring thestay of execution of the order for ejectment, i.e. from the 1st July to the 31st October 1985, the respondent should notpay any rentandthatbeing in addition to the award in favour of the respondent of £270.- 25 compensation-themaximumprescribed byLawconsidenngthat themonthlyrentforthebusinesspremisesinquestionwas£15per month by eighteen months.The second one is the order made against theappellant,thesuccessful applicantinthe proceedings topay thecostsof therespondent. 30 Aterm like the first one is in our view not warranted by any provision of the Law and obviously in clear contravention of Section 11
(2)oftheRentControlLaw 1983 (LawNo.23of 1983) andconsequently theappellantshouldbesuccessful onthispoint for thereasonswe areabouttogive. 422 35 1 C.L.R. Kyriacouv. Leontiou A. Loizou J. Section 11
(2)provides: «
(2)To Δικαστήριον, εκδίδον απόφασιν ή διάταγμα δυνάμει τωνπαραγράφων (α),
(6),(γ),(δ), (ε),(στ), (η) (θ), (ι), (ια) και (ιθ) του άρθρου τούτου, δύναται, 5 τηρουμένου του όρου ότι ο ενοικιαστής θα πληρώσει παν ποοόν το οποίοννομίμως οφείλεται ήδυνατόν να καταοτή οφειλόμενον υπ' αυτού, να αναστείλη την εκτέλεσιν της αποφάσεως ή του διατάγματος ή να αναθάλη την ημερομηνίαν κατοχής δια τοιαύτην 10 περίοδον μη υπερβαίνουσαντο εν έτος, εκτός εάν οι διάδικοι άλλως ήθελον συμφωνήσει, και υπό την επιφύλαξιντοιούτωνόρων οίουςτοΔικαστήριον ήθελε θεωρήσει καταλλήλους.» And inEnglish itreads: 15 20 «
(2)The Court in granting a judment and or order under paragraphs (a),(b),(c),(d),(e),(f),(g),(h),(i), (j), and(k)ofthis section may subject totheconditionthatthetenantwillpay any amountlawfully due or becoming due by him, suspend theexecution of thejudgment ororderorpostpone thedate of possession for such period notexceeding oneyear unless theparries otherwise agree and subject tosuch termsas the Courtthinksfit.» It is clear from the aforesaid provision thatthe Court has no power torelievea tenantof his obligation topay rentduring the 25 period of stay. Such a possibilityexistsonly if theparries agree. Thenonpaymentof rentisnotpossiblewithouttheagreement ef the parties and the concluding phrase of this subsection «and subject tosuch terms as theCourtthinks fit»,cannotbe taken as empowering the Court to impose such a condition relieving a 30 tenant of his obligation to pay rent in addition to his receiving compensation,ifotherwise justified,undersection 12ofthe Law, andof course Section 13thereof,where applicable. If that was possible it would amount to an increase of the expresslyspecified maximum amountof compensation provided 35 bySection 12whichinthecaseofejectmentunderparagraphs(0, (g), and(h), -andwe areconcernedherewithparagraph (h), -the discretionary powergiventotheCourtistoorderalandlordtopay tothetenantcompensation which for residences willnot exceed anamountequaltothecurrentrateofninemonthsandinthecase 40 ofashopanamountequaltothatof eighteen months.Itmayalso be added that Section 13 empowers the Court to award 423 A.LoizouJ. Kyriacouv.Leontiou
(1987)compensation to the tenant of business of premises where there hasbeen acquired good will. Onlyclearand unambiguous language cangivesuchpowersto a Court, if at all. The second part of the judgment against which thisappeal isdirected istheorderastocostsmadebytheCourtby 5 which the successful applicant landlord wasadjudged to pay the costs of the respondent on the scale of one month's rent, «on account of the peculiarity of the case and because the judgment benefits really the landlord whereas it will create financial problems to the respondent», as the Court put it. No doubt a 10 successful party may sometimes be depnved of his costs. A successful plaintiff may moreover be ordered to pay the costsof thedefendant. (See London WelshEstatesLtd. v.Philip,100L.J. K.B.449 and theAnnual Practice 1958p. 1822et seq. Indeed under the heading «Discretion to be Exercised 15 Judicially»the following isstated atp. 1822: «Widethough the discretionis,itisajudicialdiscretion, and mustbeexercisedonfixedprinciples,thatisaccordingtorules of reason and justice, not according to private opinion (Sharpe v. Wakefield, [1891]A.C.173);oreven benevolence 20 (Kiersonv.Joseph L. Thompson &Sons, Ltd:, [1913] 1 K.B. 587),orsympathy{Bevington v.Perks, [1925]2K.B.,p.231), and the exercise of discretion even by a Judge sitting alone must be justifiable {Ritter v. Godfrey, [1920] 2 K.B. 47); for instance where apartysuccessfully enforces a legalright,and 25 in no way misconducts himself, then he isentitled to costsas ofright{Cooper v. WhiWngham [1880] 15Ch.D.501; Jones v. Curling [1884] 13 Q.B.D., p. 265; Upmann v. Forester [1883]24 Ch. D.231;CivilService Co-operative Society v. Genera! Steam Navigation Co., [1903] 2 K.B. 756, C.A. 30 explained and distinguished inDonald Campbell&Co., Ltd., v.Pottak, [1927]A.C. 732)see in particular, the language of LordCave,L.C.,inthatcase atpp. 811,812;» It may be mentioned here that the test of Lord Cave L.C. in Campbell's case (supra) at pp. 811-812 referred to above was 35 adopted by this Court in ChrysoullaEleftheriou v.Dora Rousou and Another, 23 C.L.R. p.191. Further down at p. 1823 it isstated that «where there are no materials on which theJudge can exercisehisdiscretionhe isnot justified in depriving a successful party of his costs. CivilService 424 40 1C.LJt. Kyriacouv.Leontiou A.LolxouJ. Cooperative Society v. GeneralSteam Navigation Co., [1903] 2 K.B. 756 C.A. The materials must be those in evidence in the case, and when judgment has been delivered the Court will not hear fresh vivavoce evidence forthe purpose of influencing 5 the costs{MayorofBristolv.G.W.Ry,
(1916)W.N.47).» Ifneither private opinion norbenevolence norsympathy come within the fixed principles upon which thejudicial discretion of a Judge canbeexercisedinfavour ofdeprivingasuccessful partyof his costs, more so these factors cannot be invoked nor impose 10 upon a successful party the burden of paying the costs of the defendant. The discretion of the Judge mustbe clearly exercised andcannotmerelybetheapplicationofsomegeneralrule.Simply to follow a general rule is not the exercise of discretion. (See Robertson v.R [1881]6 P.D. 128). 15 It may be stated here that this Court only interferes with the Judge'sorderonthequestion ofcostsiftheappellantsatisfiesitas it ought to that the trial Judge did not exercise his discretion judiciallyandtherefore hecontravened theLawthathisorderwas madeonamisconception offactorthattheappellantwasordered 20 to pay costs incurred or occasioned, without sufficient reason by another party (Order 35 rule 20 of the Civil Procedure Rules), except forsome reason connected withthe case. Inthe present case itisclearthatthetrialCourtdid not exercise its discretion on fixed principles but merely acted on its own 25 private opinion and out of sympathy and benevolence for the tenant. Moreover by its order for costs it was imposing on the applicant an additional burden not warranted by the Law and obviously beyond the limits of compensation provided by it, a situationcontrarytoanyprinciplegoverningthequestionofcosts. 30 On the other hand the Court enhanced thereby the financial benefits of the tenant beyond the limits of the Law and it manifested feelings of kindness towardsthetenant.Such feelings are not of course the correct criteria in deciding the question of costs.See George Glykys v.loannis Ioannides, 24 C.L.R. p. 220 35 and ChrysoullaEleftheriou (supra). Aware of the well defined limits within which this Court on appeal interferes with the exercise of a Judge's discretion as to costs,wehavecometotheconclusiononthefactsofthiscaseand the reasons given by the trial Court not merely for depriving the 40 successful applicant of his costs but for ordering him to pay the 425 A.LoizouJ. Kyriacouv.Leontiou
(1987)costs of the respondent, that the trial Court did not exercise its discretion judicially but on a wrong principle and therefore it contravenedtheLaw.Thisgroundtherefore ofappealshouldalso succeed. ThecasecouldadequatelybemetbythetrialCourtmakingno 5 orderastocostsfollowingthepracticebomoutbytheauthorities that though normally costs follow the event, yet in proceedings undertheRentControl Lawsthatpracticeneednotbe followed. (See TakisGalatariotisv. CharalambosPolemicsandAnother,20 C.L.R. Part II, p. 70; Electricity Authorityv. Giorgaiettos and 10 Others
(1972)1 C.L.R.77andHadjiCostav.Anastassiades
(1982)1C.L.R. 296). For allthe above reasonsthe appeal isallowed and both the judgmentandtheorderforcostsarevariedaccordingly. Inthecircumstances,therewillbenoorderastocostshereand 15 intheCourtbelow. Appealallowed. Noorderastocosts. 426