(1987) 1 CLR 420
[*420]
[A. LOIZOU, LORIS, STYLIANIDES, JJ.]
ANDREAS KYRIACOU,
Appellant-Applicant,
v.
CHRISTOFOROS LEONTIOU,
Respondent.
(Case Stated No. 235).
Rent control—The Rent Control Law 23/83—Whether in granting an order of ejectment the Rent Control Law may, in addition to compensation under section 12 or section 13, impose a condition that during the period of the stay of execution of the order, the tenant should not pay any rent—Question answered in the negative, as such a condition is not warranted by any law and it contravenes section 11 (2) of Law 13/83—The phrase «such terms as die Court thinks fit» in section 11 (2) does not empower die Court to impose such a condition.
Appeals—Costs—Interference by this Court with an order made by die trial Court—Principles applicable.
Costs—Principles governing the exercise of die discretion in depriving a successful litigant of his costs or in ordering a successful plaintiff to pay defendant's costs—The discretion should not be exercised according to private opinion, sympathy or benevolence, but judicially according to fixed principles—Rent Control cases—The practice that costs normally follow die event need not be followed in proceedings under die Rent Control Law.
The trial Court granted an order of ejectment, but ruled that during the period of its stay of execution (1.7.85-31.10.85) the tenant should not pay any rent and mat the costs of the proceedings should be paid by the successful applicant «on account of the peculiarity of the case and because the judgment benefits realty the landlord, whereas it will create financial problems for the respondent».
Hence the present appeal by way of case stated. It must be noted that the tenant was, also, awarded as compensation a sum equivalent to 18 months' rent, that is the maximum allowed by law in respect of shops.
Held, allowing the appeal: (1) The term as to the non payment of rent is not warranted by the provisions of any law and contravenes the provisions of [*421] section 11(2) of the Rent Control Law. The phrased therein «and subject to such terms as the Court thinks fit» does not empower the Court to relieve a tenant from the obligation to pay rent in addition to his receiving compensation, if compensation is justified, under section 12 or section 13. If that was possible it would amount to an increase of the maximum limit of compensation provided by section 12.
(2) The matter of costs is a matter of judicial discretion, which, however must be exercised judicially. No doubt a successful litigant may sometimes be deprived of his costs and, moreover, a successful plaintiff may be ordered to pay the costs of the defendant. Neither private opinion nor benevolence nor sympathy come within the fixed principles upon which the judicial discretion may be exercised in depriving a successful litigant of his costs; and more so these factors cannot be invoked in order to impose upon a successful party the burden of paying his opponents costs.
(3) This Court does not interfere with an order related to costs unless the appellant satisfies it that the discretion of the trial Court was not exercised judicially and therefore the trial judge contravened the law or his order was made on a misconception of fact or that the appellant was ordered to pay costs incurred or occasioned without sufficient reason by another party (Order 35 Rule 20 of the Civil Procedure Rules), except for some reason connected with the case.
(4) In this case the trial Court did not exercise its discretion judicially, but according to private opinion and out of sympathy and benevolence to the tenant. Moreover, its order imposes on the appellant an additional burden, beyond the limits of compensation provided by the law.
(5) Though normally costs follow the event, yet in proceedings under the Rent Control Laws that practice need not be followed.
Appeal allowed. No order
as to costs here and in the
Court below.
Cases referred to:
London Welsh Estates Ltd. v. Philip, 100 L.J. K.B. 449;
Eleftheriou v. Rousou and Another, 23 C.L.R. p. 191;
Civil Service Cooperative Society v. General Steam Navigation [1903] 2 K.B. 756 C.A.
Mayor of Bristol v. G.W.Ry [1916] W.N. 47;
Robertson v. R. [1881] 6 P.D. 128; [*422]
George Glykys v. Ioannis Ioannides, 24 C.L.R. p. 220;
Galatariotis v. Polemitis and Another, 20 C.L.R. Part II p. 70;
Electricity Authority v. Giorgalletos and Others (1972) 1 C.L.R. 77;
HjiCosta v. Anastassiades (1982) 1 C.L.R. 296.
Case stated.
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 an order of ejectment of the respondent from a shop whereby in granting the order of ejectment and ordering a stay of execution 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 not pay rent, and ordered that the costs should be paid by the successful applicant.
D. Koutras, for the appellant.
No appearance for the respondent.
Cur. adv. vult.
A. LOIZOU J. gave the following judgment of the Court. This is an appeal against two parts of the judgment of the Rent Control Court of Limassol - Paphos, sitting at Paphos. The first one is that by which it was directed that during the stay of execution of the order for ejectment, i.e. from the 1st July to the 31st October 1985, the respondent should not pay any rent and that being in addition to the award in favour of the respondent of £270.-compensation - the maximum prescribed by Law considering that the monthly rent for the business premises in question was £15 per month by eighteen months. The second one is the order made against the appellant, the successful applicant in the proceedings to pay the costs of the respondent.
A term 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) of the Rent Control Law 1983 (Law No. 23 of 1983) and consequently the appellant should be successful on this point for the reasons we are about to give. [*423]
Section 11(2) provides:
«(2) ###.»
And in English it reads:
«(2) The Court in granting a judment and or order under paragraphs (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), and (k) of this section may subject to the condition that the tenant will pay any amount lawfully due or becoming due by him, suspend the execution of the judgment or order or postpone the date of possession for such period not exceeding one year unless the parties otherwise agree and subject to such terms as the Court thinks fit.»
It is clear from the aforesaid provision that the Court has no power to relieve a tenant of his obligation to pay rent during the period of stay. Such a possibility exists only if the parties agree. The nonpayment of rent is not possible without the agreement of the parties and the concluding phrase of this subsection «and subject to such terms as the Court thinks fit», cannot be taken as empowering the Court to impose such a condition relieving a tenant of his obligation to pay rent in addition to his receiving compensation, if otherwise justified, under section 12 of the Law, and of course Section 13 thereof, where applicable.
If that was possible it would amount to an increase of the expressly specified maximum amount of compensation provided by Section 12 which in the case of ejectment under paragraphs (f), (g), and (h), - and we are concerned here with paragraph (h), - the discretionary power given to the Court is to order a landlord to pay to the tenant compensation which for residences will not exceed an amount equal to the current rate of nine months and in the case of a shop an amount equal to that of eighteen months. It may also be added that Section 13 empowers the Court to award [*424] compensation to the tenant of business of premises where there has been acquired good will.
Only clear and unambiguous language can give such powers to a Court, if at all. The second part of the judgment against which this appeal is directed is the order as to costs made by the Court by which the successful applicant landlord was adjudged 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 successful party may sometimes be deprived of his costs. A successful plaintiff may moreover be ordered to pay the costs of the defendant. (See London Welsh Estates Ltd. v. Philip, 100 L.J. K.B. 449 and the Annual Practice 1958 p. 1822 et seq.
Indeed under the heading «Discretion to be Exercised Judicially» the following is stated at p. 1822:
«Wide though the discretion is, it is a judicial discretion, and must be exercised on fixed principles, that is according to rules of reason and justice, not according to private opinion (Sharpe v. Wakefield, [1891] A.C. 173); or even benevolence (Kierson v. Joseph L. Thompson & Sons, Ltd., [1913] 1 K.B. 587), or sympathy (Bevington v. Perks, [1925] 2 K.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 a party successfully enforces a legal right, and in no way misconducts himself, then he is entitled to costs as of right (Cooper v. Whittingham [1880] 15 Ch. D. 501; Jones v. Curling [1884] 13 Q.B.D., p. 265; Upmann v. Forester [1883] 24 Ch. D. 231; Civil Service Co-operative Society v. General Steam Navigation Co., [1903] 2 K.B. 756, C.A. explained and distinguished in Donald Campbell & Co., Ltd., v. Pollak, [1927] A.C. 732) see in particular, the language of Lord Cave, L.C., in that case at pp. 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 adopted by this Court in Chrysoulla Eleftheriou v. Dora Rousou and Another, 23 C.L.R. p. 191.
Further down at p. 1823 it is stated that «where there are no materials on which the Judge can exercise his discretion he is not justified in depriving a successful party of his costs. Civil Service [*425] Cooperative Society v. General Steam 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 viva voce evidence for the purpose of influencing the costs (Mayor of Bristol v. G.W.Ry., (1916) W.N. 47).»
If neither private opinion nor benevolence nor sympathy come within the fixed principles upon which the judicial discretion of a Judge can be exercised in favour of depriving a successful party of his costs, more so these factors cannot be invoked nor impose upon a successful party the burden of paying the costs of the defendant. The discretion of the Judge must be clearly exercised and cannot merely be the application of some general rule. Simply to follow a general rule is not the exercise of discretion. (See Robertson v. R [1881] 6 P.D. 128).
It may be stated here that this Court only interferes with the Judge's order on the question of costs if the appellant satisfies it as it ought to that the trial Judge did not exercise his discretion judicially and therefore he contravened the Law that his order was made on a misconception of fact or that the appellant was ordered to pay costs incurred or occasioned, without sufficient reason by another party (Order 35 rule 20 of the Civil Procedure Rules), except for some reason connected with the case.
In the present case it is clear that the trial Court did not exercise its discretion on fixed principles but merely acted on its own 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 situation contrary to any principle governing the question of costs. 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 towards the tenant. Such feelings are not of course the correct criteria in deciding the question of costs. See George Glykys v. Ioannis Ioannides, 24 C.L.R. p. 220 and Chrysoulla Eleftheriou (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, we have come to the conclusion on the facts of this case and the reasons given by the trial Court not merely for depriving the successful applicant of his costs but for ordering him to pay the [*426] costs of the respondent, that the trial Court did not exercise its discretion judicially but on a wrong principle and therefore it contravened the Law. This ground therefore of appeal should also succeed.
The case could adequately be met by the trial Court making no order as to costs following the practice born out by the authorities that though normally costs follow the event, yet in proceedings under the Rent Control Laws that practice need not be followed. (See Takis Galatariotis v. Charalambos Polemitis and Another, 20 C.L.R. Part II, p. 70; Electricity Authority v. Giorgalettos and Others (1972) 1 C.L.R. 77 and HadjiCosta v. Anastassiades (1982) 1 C.L.R. 296).
For all the above reasons the appeal is allowed and both the judgment and the order for costs are varied accordingly.
In the circumstances, there will be no order as to costs here and in the Court below.
Appeal allowed.
No order as to costs.
cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο