Waived or abandoned of Court judgment

"A judgment obtained upon condition and the beneficiary did not comply with such condition, he is deemed to have abandoned it”

The wording of a judgment or order of a Court is significant and determines the rights of the parties, and where a person has obtained such judgement or order upon condition which does not comply with, he is deemed to have waived or abandoned such judgment so far as the same or to the extent is beneficial to himself. The other person interested in the matter may, on breach or non-performance of the condition take either such proceedings as the judgment or order may in such case warrant, or such proceedings might have been taken if no such judgment or order have been made. An example of such judgment is the one that provides for the payment of an amount of compensation which will be paid at the same time as the delivery of possession of the property and provided that this will take place on a specific date. If there is no delivery of possession on the specified date then due to non-compliance the right to compensation is deemed to have been abandoned.

Decision of the Court of Appeal

This interesting matter was examined by the Court of Appeal in CA 101/2018 dated 23.04.2024 and related to the consent judgment of the Nicosia Rent Control Court which provided for the eviction of the tenant and delivery to the owner of vacant and free possession of the property with stay of execution until 31.07.2017. The judgment provided for the owner to pay the tenant the amount of €18.000, which represented compensation. The amount according to the judgement would have been paid simultaneously with the delivery of possession and, provided that this will take place on or until 31.7.2017.

The property was not delivered until 31.7.2017 and was delivered a few days later on 7.8.2017, with the keys handed over to the owner's solicitor. A dispute arose between the parties as to whether or not the tenant was legally obliged to hand over the property by 31.07.2017, but also on the factual reasons why he did not do so. According to the decision, the owner considered that the delivery was overdue and therefore there was no obligation to pay the tenant the amount of €18.000. The tenant thought otherwise and, in view of the non-payment of the amount, proceeded to issue a writ of movables for the seizure and sale of the owner's movable property.

The owner responded with an application requesting an order setting aside the writ of movables and for a declaratory order that the tenant was not entitled to claim the amount of €18.000 due to his non-compliance with the condition of the judgement to hand over the property by 31.07.2017. The owner's application after hearing was dismissed by the trial court and the owner appealed the judgment.

Reasons and conclusion of the Court of Appeal

The Court of Appeal held that the interpretation of the first instance Court judgment was beyond doubt. The obligation to pay the amount of €18.000 was connected with and absolutely dependent on the delivery of the property by 31.07.2017 and not at any other later date. Timely delivery was an indispensable condition for the creation of the obligation to pay the compensation. Without the first, there was no second. He found the owner's grounds of appeal valid and referred to Order 40 rules 2 and 3 then in force.

In relation to the trial Court's reference to Order 42 of the Rules of Civil Procedure, Execution by Sale of Immovable Property, which indicated that endorsed order should be personally served on the person ordered to comply with the order and that orders not served in time are not personally enforceable, the Court of Appeal held that this was not the case.

Based on the consent judgment, the obligation to deliver by the fixed date, by consensual and expressly expressed choice of the parties, was imperative and absolute. There was no explanation or justification for the late delivery. The Court of Appeal decided that the owner's appeal succeeds and set aside the first instance Court judgment that rejected his application.

Having all the evidence before it, the Court of Appeal granted the requested remedy by issuing: (a) an order setting aside the writ of movables for the seizure and sale of the owner's movable property and (b) an order declaring that, because the tenant failed to fulfill the express term of the consent judgment for delivery of the property in question to the owner by 31.7.2017, he abandoned such judgment in regards to awarding him the amount of €18.000 and he was not entitled to claim or collect this amount from the owner.