(1980) 1 CLR 556
[*556] 1980 July 1
[TRIANTAFYLLIDES, P., L. LOIZOU, HADJIANASTASSIOU,
MALACHTOS, DEMETRIADES, JJ.]
DOROTHEA SHIPPING CO. LTD., AND ANOTHER,
Appellants-Defendants,
CONSOLIDATED INVESTMENTS & CONTRACTING COMPANY,
Respondents-Plaintiffs.
(Civil Appeal No. 6002).
Admiralty—Practice—-Judgment by default of appearance—Setting aside of—Whether by way of appeal or by way of application to trial Judge—Rule 44 of the Cyprus Admiralty Jurisdiction Order, 1893.
This was an appeal by the defendants in an admiralty action against a judgment given in default of appearance.
On the question whether it was open to the appellants to appeal against the judgment by default or whether the proper course was to apply to the trial Judge to have it set aside under rule 44 of the Cyprus Admiralty Jurisdiction Order, 1893:
Held, that though this Court sitting as an appellate Court, possesses jurisdiction to hear a direct appeal from a judgment by default, in a case such as this one it is important to prevent an appellate tribunal from being flooded by appeals of this nature and that the proper course was for the appellants to have applied first, under rule 44, for the setting aside of the judgment which was given against them by default; and accordingly the appeal must be dismissed (see Vint v. Hudspith [1885] 29 Ch. D. 322).
Appeal dismissed. [*557]
Cases referred to:
The Beldis [1936] P. 51;
Vint v. Hudspith [1885] 29 Ch. D. 322;
Armour v. Bate [1891] 2 Q.B.D. 233.
Appeal.
Appeal by defendants against the the judgment of a Judge of the Supreme Court of Cyprus (Sawides, J.) dated the 7th August, 1979 (Admiralty Action No. 87/79) whereby judgment in default was given in favour of the plaintiffs for the equivalent in Cyprus pounds of Bahrain dinars 11,643 on the basis of an arbitration award against the defendants for breach of a charterparty.
M. Vassiliou, for the appellants.
C. Erotokritou, for the respondents.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following judgment of the Court. In this case the respondents, as plaintiffs, have sued the appellants, as defendants, in admiralty action No. 87/79, claiming to be paid the equivalent in Cyprus pounds of Bahrain dinars 11,643, together with interest thereon at the rate of 7% per annum from August 1, 1973, to the date of payment, on the basis of an arbitration award made in London, on December 19, 1978, against the appellants for breach of a charterparty entered into between the respondents and the appellants in Piraeus on March 16, 1973; and, also, for the equivalent in Cyprus pounds of 650 pounds sterling, being taxed and assessed arbitration fees and expenses awarded to the respondents pursuant to the said award of December 19, 1978.
The action was filed on April 3, 1979, and on June 14, 1979, the respondents applied for judgment in default of appearance. The trial Judge directed that the application should be made by summons and that the petition should be filed also.
The petition was filed on June 19, 1979, and the new application for judgment in default of appearance was made under rule 41 of our Admiralty Jurisdiction Rules on the same date.
On July 12, 1979, when the application was fixed for hearing, the appellants, though duly served with it, failed to appear and the case was fixed for proof of the claim of the respondents on August 7, 1979, when the trial Judge, on being satisfied that [*558] the respondents had proved their claim, gave judgment in their favour.
On September 17, 1979, the present appeal was filed and the sole ground on which it is based is that the trial Judge lacked completely jurisdiction to deal with the case and to issue the judgment by default.
It has been submitted, in this respect, before us by counsel for the appellants that a claim based on an arbitration award for breach of a charterparty is not one of the several matters which come within the admiralty jurisdiction of the Supreme Court and that such award could have been enforced only by a civil action, and not by admiralty proceedings. He has relied, in this respect, inter alia, on The Beldis, [1936] P. 51.
On the other hand, counsel for the respondents has submitted that it was not open to the appellants to appeal against the judgment by default and that the proper course was to apply to the trial Judge to have it set aside, under rule 44 of our Admiralty Jurisdiction Rules, which reads as follows:
“44. Where any judgment has been given in the absence of either of the parties in accordance with the provisions of Rules 41 and 43 hereof, any party affected by such judgment may apply to the Court or Judge to set aside the judgment and the Court or Judge may set aside the judgment on such teams as to the payment of costs or otherwise as shall appear to be just.”
As it appears from cases such as Vint v. Hudspith, [1885] 29 Ch. D. 322 and Armour v. Bate, [1891] 2 Q.B.D. 233, we do possess jurisdiction, sitting as an appellate Court, to hear a direct appeal, like the present one, from a judgment by default.
We are, however, of the opinion that it was correctly laid down in the Vint case, supra, that in a case such as this one it is important to prevent an appellate tribunal from being flooded by appeals of this nature and that the proper course was for the appellants to have applied first, under rule 44 of our Admiralty Jurisdiction Rules, for the setting aside of the judgment, which was given against them by default, without even an appearance to the action having been entered by either of them. [*559]
In the Vint case, supra, Bowen L.J. said the following (at p. 324):
“I should be sorry to decide that the Court has not jurisdiction to entertain an appeal from a judgment given by default; but it is equally clear that it is a bad practice to encourage parties to come here without having the cause in the first instance tried by the Court below.”
We have, therefore, in the light of the foregoing, decided to dismiss this appeal; but the appellants are free to apply to the trial Judge, under rule 44, above, to have the judgment by default set aside and they are, of course, also, entitled to raise before him the issue of the jurisdiction which was raised before us and which we leave open, for the time being.
In the result this appeal is dismissed with costs.
Appeal dismissed with costs.
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