clr/1988/1988_1_279.pdf

(1)CHRISTOFOROSPELEKANOS,

(2)GEORHIOSPELEKANOS, {3)C.&A.PELEKANOSASSOCIATESLTD. AND

(4)CHRISTOFOROS PELEKANOS LTD., FOR LEAVE TO APPLYFORANORDEROFCERTIORARI, AND INTHEMATTEROFANINTERIMORDERGRANTEDBYTHE DISTRICTCOURTOFNICOSIAINACTIONNO.377/88 ON 18.1.88. (ApplicationNo. 27/88). Prerogative Orders—Certiorari—Leave to apply for, granted — Application under 0.48, r.8

(4)of the CivilProcedure Rules tosetit aside— What the applicant (assuming he has a right to apply as aforesaid)should prove. 5 10 Civil Procedure—Setting aside an order made ex parte—The Civil Procedure Rules, 0.48, r.8

(4)—Whether this rule is applicable in order to set aside leave granted ex parte to apply for an order of certiorari—Doubtful. The Court granted to the respondent in this application leave to apply for an order of certiorari quashing an interim order issued ex parte by a District Court at the instance of the_present applicant (plaintiff inthe action). This isan application based on 0.48, r.8

(4)of the Civil Procedure Rulestoset aside the said leave. 15 20 Held, dismissing* the application:

(1)The Court has never - experienced an application of the nature envisaged bythisOrderof the Rules of Court, other than in cases in which provisional orders weremadeunder section32 oftheCourtsofJustice Law,Law 14/60, the CivilProcedure Law,Cap.6andwhen an orderwasmade for the arrest of a ship. Such orders have never been set aside or varied unless it was found that the prerequisites required for granting the order were not satisfied. 279 Inre Peleltanos & Others

(2)ThisCourt'srighttograntleavetoapersontoapplyforanorder ofcertiorariisadiscretionaryone,whichmustbejudiciallyexercised. WhattheJudgehastodecideiswhether,onthematerialbeforehim a prima facie casewasmade outwhich wassufficient tojustify the grantingofleave. 5

(3)Itfollowsthatassumingthatthereisarightbyaperson affected bysuchleavetoapplyforittobesetasideorvaried,thatpersonhas tosatisfy theJudgethat (a)hedidnotexercisehisdiscretionjudicially,and (b)noprimafaciecasewasmadeoutwhichwassufficienttojustify himingrantingtheleave. 10

(3)Inthepresentcasetheargumentsputforwardbytheapplicant aredirectedonthequestion ofwhethertheorderofcertiorariought to bemade and not tothe lackofthetwoprerequisites oreitherof themtowhichIhaveearlier referred. 15 Applicationdismissed. Noorderastocosts. Casesreferredto: AntonPillerKGv. ManufacturingProcessesLtd. andOthers[1976] 1AllE.R.779. 20 Application. Application for the setting aside of the order of the 1st March, 1988 whereby leave was granted to the respondents to apply for an order of certiorari. Cur.adv. vult. 25 L. Papaphilippou, for the applicant. K.Michaelides, for the respondents.· DEMETRIADES J. read the following judgment. This is an application by which Mr.AndreasPelekanos (hereinafter referred toastheapplicant)applies forthesettingaside ofan orderImade 30 on the 1st March, 1988, by which I granted leave to Messrs Christoforos Pelekanos, Georghios Pelekanos, C &A Pelekanos Associates Ltd. and Christoforos Pelekanos Ltd. (hereinafter referred toastherespondents),toapplyforanorderofcertiorari. The application is.based on the Civil Procedure Rules 0.48 r.8

(4)which provides: 280 35 1 C.L.R. In re Pelekanos & Others Demetriadea J. «Any person {other than the applicant) affected by an order made ex parte may apply by summons to have itset aside or varied and the Court or Judge may set aside or vary such order on such terms as may seem just.» 5 The application was opposed by the respondents. Before proceeding to state the facts on which the applicant bases his application, I consider itnecessary togivea summary of the facts thatled to thepresent proceedings: 10 On the 16th January, 1988, the applicant filed in the District Court of Nicosia, against the respondents, Action No. 377/88, by which he claimed thefollowing remedies: «(A) Injunctions restraining defendants 1, 2 and 4 personally, theirservants and agents, from - 15 (

1. i)using and/or exploiting machinery, tools, materials and iabourers belonging todefendant No.3fortheconstructionof two blocks of flats atNicosia, (
2. ii)altering ordestroying thebooks, receipts,contracts, papers and correspondence of defendant No.3 and/or of falsifying the entries totheir books and files. 20 2iJ 30 Φ)An orderdirecting the defendants togive onoath detailed accounts and explanations relating to machinery, materials and labour which were used from the property of defendant • No.3 for theconstructionof thetwoblocks of flats inthename of «PELEKANOS COURT NO 10» and «PELEKANOS COURTNO 11» situated at Nicosia, in the name and/or on account of defendant No. 4. (C)Declarationby the Courtthatthe blocks of flats which are being constructed under the characteristics or names of «PELEKANOS COURTNO 10» and «PELEKANOSCOURT NO 11» in Nicosia in the name of defendant No. 4 and/or all profits which willbe made out of them,belong and form part of the property of defendant No. 3. (D)Damages as a result of breach of duty and/or dishonesty and/or trust and/orfraud etc. 35 (E)Damages against defendant No.3amountingto £95,820.plus interest at9% p.a. as from 1.1.1980. 281 Demetriades Λ. In re Pelekanos & Others

(1988)(F)Order thatdefendant No. 1givesonoath full particulars of all dealings that he carried out as the agent of the plaintiff. (G) Judgment against defendant No. 1 for all amounts of money that he had collected and withholds by virtue of the power of Attorney dated the7th November, 1979, which was given by the plaintiff to defendant No. 1.» 5 On the 18th January, 1988, and after an ex parte application made by theapplicant, theDistrictCourtof Nicosia granted tohim an InterimOrderby which therespondentswereprohibited from: (

1. a)parting or disposing of the books, receipts, contracts and correspondence of defendant No. 3, 10 (
2. b)changing or destroying the books, receipts, contracts and correspondence of defendant No. 3, (
3. c)using machinery, tools, building materials, labourers and personnel of defendant No. 3 for the purpose of erecting the 15 blocks of flats underthename«PELEKANOS COURTNO10» and «PELEKANOS COURT NO 11» situated at Nicosia and which belong to defendant No.4. The District Court of Nicosia further made an order inthe form of an Anton Piller Order (Anton Piller KG. v. Manufacturing 20 Processes Ltd. & others {1976]1AH E.R. 779). As itappears from thedocumentsappended totheaffidavit filed insupport of thepresent application,theapplicant, four days after the said Interim Order was granted, filed contempt proceedings against the respondents who, two days later, filed an application 25 by which they prayed for the discharge of the said order. The District Court of Nicosia was then invited to rule which of the two applications was to be heard first and the Court, on the 11th February, 1988, ruled thatthe contemptproceedings ought to be determined before the respondents' application. 30 On the 17th February, 1988, the respondents filed an application for leavetoapply forcertiorari proceedings which was heard by me on the 1st March, 1988, when, after hearing extensive arguments by counsel for the respondents and after studying the affidavit filed in support of their application and the 35 contents of the documents appended to it, Ifound thatthere was a prima facie arguable case madesufficiently tojustify the granting of leaveto the respondents to move theCourttoissueanorderof certiorari. 282 1 C.L.R. Inre Pelekanos &Others Demetriades J. Havingreachedthisconclusionandinexerciseofmydiscretion, Imade the following order: 5 10 15 «1. The applicants are granted leave to apply for an order of certiorari within ten days from today. Any opposition to it must be made and filed within twenty-one days thereafter. 2. Allproceedings relatedto the interim order granted on the 18th January, 1988, in Civil Action No. 377/88, of the District Court of Nicosia, by way of execution or otherwise, are hereby stayed for ten days as from today and if the applicants apply within the period hereinabove provided, or such extended time as the Court may order, for an order of certiorari,then the stayshallcontinue tobe inoperation until further order of the Court. 3. Copy of this order to be served on the Registrar of the District Court.» As a result of my said order, the respondents filed Civil Application No.46/88,praying foran order of certiorari.Copyof this application was served on the applicant's counsel who then filed thepresent application bywhich, asIhave earliersaid, prays 20 for the discharge of the leave that I gave. In the affidavit filed in support of the present proceedings the applicant alleges, amongst others, that the respondents did not adduce any grounds which support the grant of the leave to file their application for certiorari; that the grounds on which they 25 based their application are in lawunfounded and that they failed to disclose to me the real facts. I do not intend to make any reference here to the statements of the applicant made in his affidavit on the prerequisites for the issueof an Anton Piller Order and itseffect, forthe reasons Ishall later explain. 30 AsIhave earlier said, the applicant relies on 0.48 r. 8

(4)of the Civil Procedure Rules. Inmylongpractice,both asabarristerand on the Bench Ihave never experienced an application of the nature envisaged by this Order of the Rules of Court, other than in cases in which 35 provisional orders were made under section 32 of the Courts of Justice Law, Law 14/60, the Civil Procedure Law, Cap. 6 and when anorder wasmade forthearrest ofaship.Such ordershave never been set aside or varied unless it was found that the prerequisites required for grantingtheorder were not satisfied. 283 DemetriadesJ. InrePelekanos &Others

(1988)Before proceeding to deal withthe issueraised itispertinent to say that neither of the counsel appearing, nor myself wereable to trace,eitherintheEnglish,Commonwealth orCyprusCase-lawor literature, a precedent on theissue I am asked to decide upon. Ithas repeatedly been said thatthisCourt'srighttogrant leave 5 toa persontoapplyforan orderofcertiorariisadiscretionaryone, which mustbe judicially exercised and thatwhattheJudge has to decide when the application forsuch leavewasbefore him,isnot whether the order applied for ought tobe made but whether, on the material before him a prima facie case was made out which 10 was sufficient to justify the granting of leave to the applicant to move the Court for the order sought. It is my view that assuming that there is a right by a person affected bysuch leave to applyfor ittobesetasideorvaried, that person has tosatisfy theJudge that 15 (a)he did notexercise hisdiscretionjudicially, and (b) no prima facie case was made out which was sufficient to justify him ingranting the leave. Inthepresent case thearguments putforward bythe applicant, to my mind are directed on the question of whether the order of 20 certiorari ought to be made and not to the lack of the two prerequisites or either of them towhich I have earlierreferred. As regards the Anton Piller Order, that is also an issue that Ido not think that I could have decided itintheapplication for leave. In the circumstances, I find that this application must be 25 dismissedbutinviewofthenoveltyofthepointsraised, Imake no order asto costs. Application dismissed. No order astocosts. . 284-