clr/1989/1989_1_273.pdf

(1989)World Tideν Vassiliko Cement This is an application for stay of execution of ajudgment for US Dollars 95 336 issued in favour of the plaintiff aqamst the defendants — applicants pending the appeal lodged by the latter not against such judgment, but against that part of the judgment, whereby theircounterclaim had been dismissed 5 The plaintiffs opposed the application on the following grounds namely that the application was made ex parte, that it was not supported by affidavit, that the judgment debt had been assigned and therefore even if the appeal succeeds, the judgment on the counterclaim can no longer be set off against thejudgment infavour 10 of the plaintiffs and, finally thatsince there is no appeal against the judgment, there is nopower tostay its execution The principles applied by the Court in rejecting the aforesaid ground of opposition appear sufficiently m the hereinabove headnotes Having in mind that the counterclaim arose out of a transaction inseparably connectedwiththejudgment debt,thatitisnot frivolous andvexatious, theplaintiffs areresidentabroad andhave noassetsin Cyprus and that if stay is not granted and the appeal succeeds, its effect willbe rendered nugatory, theCourtgrantedstay, but,inview 20 of thedanger for theplaintiffs of loosing theirsecurity from executing thejudgment forthwith, itimposed a conditionrelating tothegiving of secunty by the defendants applicants inthe form of a Bank Gua­ rantee in favour of the plaintiffs Order accordingly 25 No orderas tocosts Casesreferred to Chrysostumou ν Chalkousiand Sons

(1978)1CL R 10, Government of New Foundland ν Newfoundland Railway Co [1888]13App Cas 199, or» Lee Parker and Another ν hzet and Others [1971] 3 All ΕR 1099, Business Computers Ltd ν Anglo-Amcan Leasing Ltd [1977] 2 All ER 741, The Mersy Steamship Company ν Shudeworth and Co [1883] 11 Q Β D 531 Application. Application for stay of execution of the judgment of this Court until the final determination of an appeal pending before the Supreme Court 274 3 5 I<...I..R. World Tide v. Vassiliko Cement M.Christofides,for applicants-defendants. G.Michaelides,for respondents-plaintiffs. Cur.adv. vult. SAWIDESJ. read the following decision.Thisisan application 5 for stay of execution of the judgment of this Court in the above intituled action pending the final determination of an appeal pending before the Supreme Court. The applicants, defendants in the above action (hereinafter to 10 be described as«thedefendants») arethe judgment debtors of the respondents, plaintiffs intheaction (hereinafter tobedescribed as the plaintiffs) by virtue of a judgment delivered on the 23rd August,

1. Plaintiffs' claim against the defendants was originally for U.S. 15 Dollars 345,053.70 as balance of freight and/or hire and/or demurrage relating to the carriage by plaintiffs of cement from Cyprus to Nigeria. At the stage of the pleadings the plaintiffs reduced theirclaim to U.S.Dollars 145.053.70 but they introduced a new cause of action for damages for breach of contract. The 20 defendants denied any indebtedness to the plaintiffs and counterclaimed against them damages for breach of the contract for carriage of cement, for shortlanded goods and services rendered to the plaintiffs. By a judgment delivered by me on the 23rd August, 1988,1 25 awarded totheplaintiffs thesum ofU.S.Dollars95,366inrespect of their original claim and struck out their additional claim for damages for breach of contract on the ground that such claim which was introduced by the petition and was not mentioned in the writ of summons could not be granted once they had not 30 applied to amend the writ of summons accordingly. I also dismissed the counterclaim of the defendants having found that there wasno breach of contract by the plaintiffs. Asa result of the aforesaid judgment the defendants lodged an appeal against the dismissal of their counterclaim but not against 35 the award tothe plaintiffs of the sumof U.S. Dollars95,366.-The plaintiffs, on their part, lodged also an appeal against the striking outof theiradditionalclaimfordamagesforbreachofcontractand the award of interest at 9% as from the date of thejudgment and not asfrom the 1stJuly,
2. 275 SavvidesJ. WorldTidev. VassitikoCement

(1989)Theapplication wasmade ex-parte and thefactsreliedupon,in support thereof, assetouttherein arebriefly thatifthe defendants succeeded in their appeal then on the basisof their counterclaim they were entitled torecoverahighersum whichbywayofsetoff would have extinguished the plaintiffs' claim. Also that the 5 plaintiffs are foreigners and of doubtful financial condition sothat in case the amount of thejudgment waspaid and the defendants succeeded on their counterclaim the defendants would be deprived of theirrighttosetoff theamount ofthejudgment which was awarded in favour of plaintiffs against their counterclaim or 10 execute any judgment against the plaintiffs in satisfaction of the counterclaim. Finallythatvariousirrevocable lettersofassignment have been given bythe plaintiffs totwoassigneesinrespectof the whole amount of the judgment and at the same time the defendants wereserved witha decision ofthe FirstInstanceCourt 15 ofAthens,Greece,attaching asumof U.S.Dollars79,782.-outof any amount which might beadjudged tothe plaintiffs. When the application came up for hearing before me, Igave directions that notice of the application should be served on the „„ plaintiffs. The plaintiffs opposed the application. Their opposition was supported by an affidavit sworn by Miss Eliana Iacovidou of Nicosia, an advocate atthe lawoffice of plaintiffs' advocates. The main grounds raised inthesaidaffidavit are: (

1. a)That the defendants by their notice of appeal did not 25 challenge the award of U.S. Dollars 95,366.- in favour of the plaintiffs. (b)Plaintiffs by theirappeal do notchallenge the award ofU.S. Dollars 95,366.- but the dismissal of their additional claim for breach of contract and the date from which interest should have 30 been awarded intheir claim. (c)Theapplication isbad forirregularityasitisnot accompanied by affidavit. (d)The financial condition of thedefendants isnot sound. (e)That the defendants may be directed to pay the amount of 35 the judgment to Court and allthose who have a claim in respect thereof maybe called to raisetheirclaims forthe approval of the Court before any distribution of the amount so deposited is ordered. 276 I (j_i R_ World Tide% Viisiiliku Cement Savvides J. Copies of the Notices of both appeals have been produced before me in the course of the heanng of the present action as exhibits 1 and2 and they are as follows Exhibit 1 Notice of Civil Appeal No 7727 by defendants 5 directed against «that part of thejudgment relating to (A) The dismissal of defendants' counterclaim in so far as it concernstheclaim for damages caused tothemby theplaintiffs as a result of theirfailure totransport6675 metnctons of cementin breach of an agreement between them and/or as damages for 10 breach of contractby theplaintiffs tonominateone ormore ships for the transportation of the aforesaid quantity of cement (Amount of damages 6675 χ U S D 10 = US D 66, 750 -) (B)The dismissal of defendants' claim for shortages as well as their claim for set off of the amountin respect of shortages» 15 Exhibit 2 Notice of Civil Appeal No 7731 by the plaintiffs directed against «that part of thejudgment relating to 1 The dismissal of plaintiffs' claim for damages amounting to U S . Dollars 255,212 50 for breach of contract for the transportation of25,000tonsof cementfrom Lamacaor Limassol 20 toNigena, inJanuary, 1975 2 The dismissal of plaintiffs' claim for interest at 9% as from 1 7 1975 on the amount of the judgment that is U S Dollars 95,366 - and the award of such interest as from 23 8 1988» Both the application and the opposition are based, as 25 mentioned therein,on the Civil Procedure Rules, Order35, rules 1, 18, 19, 40, Order 48, the Cyprus Admiralty Rules and the inherentjunsdiction of theCourt The arguments advanced by counsel for defendants in support of their application and in reply to the contentionof counsel for 30 plaintiffs may be bnefly summanzed as follows (
2. a)Under the provisions of section 47 of the Court of Justice Law and theprovisions of Order40, rule 7,of theCivil Procedure Rules theCourtis invested with a wide discretion toorderstay of execution 35 (b)Ithasbeen thepracticeof theCourtinactionswhere thereis a counterclaim, when giving judgment on the claim, to stay 277 SavvidesJ. World fide v.VassillkoCement

(1989)execution thereof pending the determination of the counterclaim so that justice isdone toboth litigants. (c) No affidavit in support of the epp'ioVJor. is needed as the application ismade «ex-parte» and under the provisions of Order 48, rule 8, no such affidavit isrequired. 5 (d)The 'actthattherelevantpartofthejudgmentinfavourofthe plaintiffs was not challenged on appeal isirrelevant as the power of the Court under s.47 oftheCourtsofJustice Lawisnot subject to anysuch limitation butisageneral powerwhich maybeexercised even m cases inwhichthere isno appeal 10 The question of assignment hasnothingtodo inthiscaseasany assignment >ssubject toanysetoff arisingoutof thesame contract ortransaction asthe subject-matter of theassignment and that the debtor has thesamerightsorsetoff against theassignee asagainst the principal creditor. Counsel for the plaintiffs on the other hand contended that: (a)The applicationshouldhavebeen accompanied byan affidavit and the.failure ofthedefendants tofilesuchanaffidavit rendersthe proceedings nuil and void. In support of his contention in this respect counsel for the plaintiffs sought to rely on the 20 corresponding to our Civil Procedure Order 35, rule 18, old English Order 58,rule 12and alsotoOrder48,rule9 ofthe Civil Procedure Rules. (b)There isnoappealagainsttheawardofU.S.Dollars95,366.in favour of the plaintiffs and. therefore, thispart of thejudgment 25 has become final and conclusive. Therefore, the stay applied for does not amount to anything more than asking than this amount does remain in the hands of the defendants as security for their unfounded counterclaim. (cj Once the judgment has become final and conclusive and 30 therehasbe^n assignmentsoftheamountofU.S,Dollars95,366.tothirdpersons,tothe knowledge ofthedefendants, such amount does not belong to the plaintiffs any more, but itbelongs to the assignees. Therefore, nothing is left to be set off against the counterclaim of the defendants. The present application being an application in an Admiralty Action, resort should have been first to the Rulesof the Supreme Court of Cyprus in its Admiralty Jurisdiction and the application should have been argued on the basisof such rules. 278 1 C.I..K. Wurld Tide%. VasMtiku Cement Sawidu.sJ. Provision for stay of execution does exist in our Admiralty Jurisdiction Rule1;underthe heading«Execution*a*: follows under Rulusl75and 176: 5 10 «175' The CourtorJudge may.atany Hmnrtfter theissueof a writ of execution, on the application of any pprson, direct that proceedings under the wnt may he stayr.i for such time and on such term-3 asshallseem fit. 176: Any such application may he made without notice to any party but lhe Court or Judge, on the hearing of the application, may direct that notice theieof be given to any party interested any, may adjourn itu- hearing o! the application for that purpose». Asto the form ofan application Ru'u 203provides as follows: 15 «Apartydesiringtoobtain an orderfrom theCourtorJudge shall ordinarily make oral application for lhe same, but the Court or Judge may. on the application being made, direct that a written application be furnished. Where awritten application isfurnished itshallbe filed with the Registrar». 20 Section 47 of the Courts of Justice Law. 1960 (Law 14/1960) provides that the trial Court or the Court of Appeal before which an appeal is pending at any time, if it so deems proper and irrespective of thefact thatawritofexecution wasissued ornot to order stay of execution of the Judgment for such period and on 25 such termsas the Court may deem fit. The definition of «-Court» as explained in section 2 of the law means the Supreme Court or any other Court established under the provisions of the law,or anyjudge thereof. Therefore under the above provision expresspower isgiven to 30 theCourt,boththeSupreme CourtandthelowerCourts,toorder stay of execution and therefore the inherent jurisdiction of the Supreme Court need not be resorted to. Under the Civil Procedure Rules Order 35, rule 18 an appeal shall not operate as a stay of execution except so far asthe Court 35 appealed from orthe Court ofAppeal, or aJudge of either Court may orderand thatbefore anyorderstayingexecution isentered, theperson obtainingtheordershallfurnish suchsecutiry(ifany)as may have been directed. 279 SawidesJ. WorldTide v.Vas:-:!ikoCement

(1989)Under Order 48, rule 8, which deals with the form of applications, an application for stay of execution pending appeal may be made ex-parte (rule 8(l)(ee)) and need not be (unless required by the Court or Judge) be supported by affidavit (rule 9

(2)). Having dealt with the relevant provisions in the law and the relevant rules I shall proceed now to examine the various questions posing for consideration. Affidavit in support of the application: Neither the Admiralty Rules which are the special Rules 10 applicable to the exercise of the Admiralty Jurisdiction nor the CivilProcedure Rulesonwhichboth partiessoughttorelyrequire that anex-parte application forstayshouldbeaccompanied byan affidavit. Under the Admiralty Rules such an application may even be 15 made orally which obviously does not require an affidavit; and under the Civil Procedure Rules,Order 48,rule 8(l)(ee) and rule 8

(2)such application need not be accompanied byan affidavit. In view of the above provisions in our Rules of Court, the provisionsoftheEnglishRulesofthe SupremeCourtdonotcome 20 into play. Therefore, the submission of counsel for plaintiffs that the application isbad for irregularity cannot be sustained. Effectof assignment As to the form and effect of an asignment of a chose inaction 25 useful reference may be made to the case of Chrysostomou v. Chalkousi & Sons

(1978)1 C.L.R. 10 in which we read the following at pp. 11,12: «Regarding assignment of a debt there exists no express provision about itinourContract Law,Cap. 149;sections37 30 and 40 of Cap. 149,which conespond tosections37and40, respectively, ofthe Indian ContractAct, 1872,canonlyberegarded asprovisionswhich donot relate directlytothe matter of the assignment of a debt and which, incircumstances such asthose of thepresent case,do notoperate, inanyway,soas 35 toexclude theassignment of adebt (see,also,the commentary on section 37 of the Indian Contract Act in Pollock and Mullaon the Indian Contractand Specific Relief Acts,9th ed., p.333). 280 5 IC.L.R. WorldTidev. VassilikoCement SawidesJ. We have, therefore, to consider what isthe law governing the assignment ofadebt inCyprus: In England it isregulated by a statute, namely the Lawof PtopertyAct 1925,which isnotapplicable in Cyprus. 5 10 15 20 Inourviewwehavetoapplythe principlesof Equitywhich were applicable before, and are still applicable after, the enactment ofthe saidstatute in England. A debt, such as the one involved in the present proceedings, isa legal chose in action, as defined in Snell's PrinciplesofEquity,27th ed.,p.69;and, asitappearsfrom the same text-book (at pp.70, 74, 77),there can be an equitable assignment ofa legal chose inaction. Such an assignment does not have to be in any particular form (see Inland Revenue Commissioners v. E'-rtric and MusicalIndustries,Ltd., [1949] 1All E.R. 120, 12b; affirmed on appeal, [1950]2 AllE.R.261)because Equitylookstothe intent ratherthan tothe form;and an equitable assignmentof a debtmadebetween anassignorand anassigneeiscomplete even ifnonoticehasbeen giventothedebtorconcerned (see Gorringe v. Irwell India Rubber and Gutta Percha Works, [1886]34Ch.D. 128).» Inthepresent caseitiscommon ground thata notice inwriting of the assignment has been given to the defendants - debtors. Whathas,howevertobeexaminedistheeffect ofsuch assignment' 25 againstthe debtors. In Snell's Principles of Equity, 27th ed., at pp.79, 80, we read thefollowing astotheeffect ofAssignment of Equities: 30 35 «Whethertheassignmentislegalorequitable,theassignee · takes subject to equities having priority over the right of the assignee. The assignee of a thing in action cannot acquire a better right· than the assignor had, or, in other words, the assignee takes the thing in action subject to all the equities affecting itinthe hands ofthe assignorwhich are in existence before notice isreceived bythe debtor Forthe same reason, the debtor hasthesamerightsof set-off against the assigneeasagainst the original creditor. 281 Sawides J. Wtirld Tide\. Yassiliko Cement

(1989)Thus if after the debtor has notice of an assignment a claim arises out of a contractwhich is independentof thatinwhich the assigned debt arose (as where Lis liable toΤ on a bond, and Τ owes L anears of rent), he cannot set off that claim against the assignee, even though the contract was made 5 before notice of the assignment. But if the set-off directly arises out of the same contract or transaction as the subjectmatter of the assignment, the defendant may set itup against the assignee even though it did not accrue to him until after .„ notice of the assignment». AlsoinHalsbury's Laws of England, Fourth Edition,vol. 6,atp. 37 underparagraph 61 we read: «Assignee subject to equities. In the case of an equitable assignment of a chose in action the debtor orfundholder has as against the assignee the same equities andthesame rights 15 of set-off andotherdefences ashewouldhave hadagainstthe assignor at thedate atwhich notice of theassignment isgiven to him.» and at p.39. underparagraph 64: «... The debtor may notset-off an independentdebt which 20 has accrued since notice of assignment, though due upon a contract made before such notice,but he may set off a debt which has accrued since notice of assignment if ithas arisen out of a transaction inseparably connected with the original debt, orif itwas theintention of the parties thatoneshouldbe 25 set off against theother.Hemayalso meettheplaintiff's claim by a counterclaim for unliquidated damages, provided that this arises out of the same contract and is not something outside the contract,as,for example, aclaim for damages for fraud against the assignor in connexion with the transaction, 30 which is a personal claim.» In support of the proposition explaned above as totherightof the debtor against the assignee to set off a debt against his counterclaim which arises out of the same transaction there is a series of English cases. Itsuffices if reference is made to some of 35 them. intheGovernment of Newfoundland v. Newfoundland Railway Co.

(1888)13Ap. Cases,p.199thePrivyCouncilsaidthat«theset off availed against the assignees of the Company,the claim and 282 1C.L.R- World Tide\. Vassilik»Ceim.nl Savvides J. counter-claim having their origin in thesame portion of the same contract, the obligations which gave riseto them beingcloselyintertwined». InLee Parkerand Another v.Izzetand Others [1971]3AllE.R. 5 1099, the above case was referred to and distinguished from the facts of the case under consideration. At p.1108 we read the following inthejudgment of Goff J.: 10 15 20 05 30 «Forthesakeofavoiding misunderstanding I must add that of course theTaylorv. Bealrightcan onlybe exercised when andsofarasthelandlordisinbreach and anynecessarynotice must have been giventohim. Insofarasthe repairs falloutside the landlord's covenants in the lease there can in my judgment be no set-off against the plaintiffs, despite Newfoundland Government v. Newfoundland RwCo. That case is plaintly distinguishable because there the defendants were expressassigneesofthestatutorycontract;and inanycasethe cross-claims arose out of the same contract. Lord Hobhouse said: 'But then itissaid that the rule of law deducibie from the authorities is, that when a debt or claim under a contract has been assigned and notice given to the debtor, which maybe assumed tohave been done inthis case, the debt or claim isso severed frorfi the rest of the contract that the assignee may hold it free from any counter claim in respect of other terms of the same contract. So, at least their Lordships understood the argument. Andassucha limitation oftherighttosetoff a counter claim is new to them, they are led to examine carefully thecasesreliedontosupportit...ButMr.Justice Willes only entered upon that examination because the two debts had no common origin, and, indefault ofsuch an agreement, noconnection with one another'. Then Lord Hobhouse approved of the principle as laid down by BovillCJ in the following terms: 35 'Nocasehasbeen citedtouswhereequityhasallowed against the equitable chose in action a set-off of debt arising between the original parties subsequently to the notice of assignment, out of matters not connected with the debtclaimed, nor inany wayreferring toit'. 283 Savvides J. WorldTide\. VassilikoCement

(1989)Itistrue BovillCJinthewordsjustquotedspoke of matters not connected withthedebtclaimedorinanywayreferringto itand not 'actually arisingout of the same contract'butinmy judgment there is clearly no sufficient nexus in the present case». 5 In Business Computers Ltd. v. Anglo-African Leasing Ltd. (1977] 2 All E.R. 741, concerning the right of debtor to set off againstassigneessumsowedbyassignortodebtoritwasheldthat: «Although a debtor was entitled to set off against the assignee of a debt, anydebt from theassignorinfavour ofthe 10 debtor which either had accrued due before the debtor received notice of the assignment, whether or not it was payable before or after the date of the assignment, or which had ansen out of or was closely connected with the same contract as had given rise to the assigned debt, the debtor 15 could not set-off as against the assignee a debt of the assignment norwasconnected withtheassigneddebt,even though ithad arisen underacontractwhichhadbeen made between the debtor and the assignor before the date of the assignment.» WiththeaboveprinciplesinmindIhavecometotheconclusion that the contention of learned counsel for plaintiffs that in the circumstances of the present case the amount of U.S. Dollars 95,366.- belongs absolutely to the assignees and not to the plaintiffs and, therefore, nothing is left to be set off against the 25 counterclaim of the defendants, isuntenable. Defendants' counterclaim has arisen out of a transaction inseparablyconnectedwiththejudgmentdebt.Onthebasisofthe equitable principle that the assignee takes subject to any equities infavour of the debtor, the assignees cannot acquire abetter title 30 tothe debt assigned that the assignorsthemselves, and anyclaim of the assignees is subject to the defendants' right of set off in respect of their counterclaim. Icome now tothe lastquestion raisedbycounsel forplaintiffs in opposing the application, that once the judgment in favour of 35 plaintiffs for US Dollars 95, 366 has not been challenged by the appeal the judgment has become final and conclusive and the aforesaid amount payable forthwith, any stay of execution pending the determination of defendants' appeal against the dismissaloftheircounterclaimwouldhaveamountedtomakingof 40 284 20 1C.L.R. WorldTidev. Vassiliko Cement Sawides J. an order against the plaintiffs for giving security towards defendants' counterclaim. Reference has already been made to the relevant provisions empowering the Court tomake an order staying execution. 5 10 15 20 25 In the notes inAnnual Practice, 1960 under Order 58, rule 12, (the Rules of the Supreme Court which were in force prior to 1960,theoldRules)whichcorrespondstoourOrder35.rule 18of the Civil Procedure Ruleswe read the the following at p. 1695: «The Court does not, 'make a practice of depriving a successful litigant of the fruits of hislitigation, and locking up funds towhich prima facie he isentitled,' pending an appeal {TheAnnot Lyle [1886],11P.D.atp. 116.C.A.; Monk v. Bar/ram [1891] 1Q.B.346) But it has also been said that 'when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful, is not nugatory' {Wilson v. Church (No.2) [1879], 12Ch. D.at pp. 458, 459, C.A.). Itisin the discretion of the Court to grant or refuse astay (Becker v.Earl'sCourtLtd. [1911] 56 S.J. 206; The Ratata, [1897] P. at p. 132; AG. v. Emerson [1889] 24 Q.B.D., pp. 58,59) Execution might be stayed, for example, where thejudgment isinfavour of aperson residentout of, orabout to leave, the jurisdiction (see Wootton v. Sievier [1913] 30 T.L.R. 165,C.A.J.» Itisalwaysinthe discretion oftheCourttograntorrefusestayof execution. Such discretion however should be exercised by the Court judicially and bearing in mind all the circumstances of the case. 30 Forthe purpose ofexercising mydiscretion inthe present caseI consider the following circumstances as important. (a) Defendants' counterclaim has arisen out of a transaction inseparably connected with thejudgment debt. (b) The counterclaim of the defendants does not appear to be 35 frivolous and unsubstantial. (c) The judgment is in favour of persons resident abroad who have no place of business in Cyprus and no assets whatsoever in Cyprus. 285 NavudesJ World ride %VassilikoCement

(1989)M) !' ('•ay-nent of the judgment debt is not ordered and ueie'idant s appeal onthe counterclaim succeeds then the effect of theuf.pedi wi'lbenugatory as thedefendants willnotbe able to set off -he ludgment debt against anyamount which theymay -erovci on the counterclaim which asI have already mentionedis inseparably connected with »hejudgment debt 5 On theotherhand thave tobear inmindplaintiffs fear oflosing theirsecurity ofexecuting the mdgment forthwith In The Mersey Steamship Company ν Shuttleworth & Co [1883] 11 Q B D 531 which was an action tor a liquidated 10 demand admitting the claim, but setting up a counterclaim for unliquidated damages toagreater amount theCourt of Appeal affirmed thejudgmentoftheQ ΒD refusing anapplicationtosign judgment forthe plaintiffs upon theclaim and forpayment ofthe amount thereof bythedefendants intoCourttoabide the result of 15 the action Intheludgment of the Court of Appeal (perCotton, LJ )WP read the following (atρ 532) « The contention for the present plaintiffs is that whenever the rluim ofa plaintiff isadmitted heisentitled to have the money paid into court 1cannot agree to that 20 argument a plainnff >rnot entitled tohave the money paid into court un!es c the counter-claim is fnvolous and unsubstantial 1 agree with the reasons and with the judgment of the Queen s Bench Division» Beanng inmindtheabove I cannotagree with thesubmission of 25 learned counsel forthe plaintiffs thatonce thejudgment debt has been admitted and notchallenged on appeal astay of execution cannot be granted for the purpose of setting off such amount against acounterclaimof the defendants Beanng inmind allthe above circumstances Ihave decided to 30 exercise mydiscretion infavour of the defendants but subject to theirgivingsecunty torthe amountofthejudgment debt and costs so that the position of the plaintiffs asjudgment creditors ortheir assignees will not in any way be hindered In theresult theapplication is granted andanorder is made 35 stayingexecution oftheamountofthejudgment pending the final determination of Civil Appeal No 7727 on condition thatthe defendants willfurnish aBank guarantee tothesatisfaction ofthe Registrar of this Court forthe amountof the judgment and costs 286 1C.I-.R. World Tide %. VassilikuCement Sawides J . within twenty days from today. If defendants fail to furnish such security within the aforesaid period the order for stay will be discharged Inthe circumstances of the caseImake no order fot costs 5 Application granted. No order asto costs. 287