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Operation
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Activity Code
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Description
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NACE 2.1
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4621
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Wholesale
of grain, unmanufactured tobacco, seeds and animal feeds - This class
includes: - wholesale of grains and seeds - wholesale of oleaginous
fruits - wholesale of unmanufactured tobacco - wholesale of animal
feeds and agricultural raw material n.e.c. - - This class excludes: -
wholesale of textile fibres, see 46.76
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Line of Business
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According
to the person interviewed, the subject company used to manufacture farming
machines and tools for the market in Cyprus and in the Middle East.
Due to the economic environment, the subject company is currently
involved in importing and trading of pet food.
Subject has 1 vehicle which are used in the running of the business
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Export to
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Percentage
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Comments
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The
subject company does not engage in any export activities.
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Import from
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Percentage
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100%
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Comments
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Greece,
Italy, Spain, Germany, Bulgaria, the United States of America
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Market Territory
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Local
Presence:
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100%
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Sales
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Sells To:
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General Public,
Group Companies
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Sells
mainly to farmers and livestock farmers
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Premises
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Type
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Headquarters
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Address:
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6
Troodous, Aradippou, 7101, Larnaka, Cyprus
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Headquarters
comprise of
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Offices,
Warehouse
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Headquarters are
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Leased
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Banks
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CO OPERATIVE
CENTRAL BANK LIMITED
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8 Gregori
Afxentiou, Nicosia, Cyprus
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No
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Date registered
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Date prepared
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Type
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Description/No
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Amount
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Sequence
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Beneficiary
|
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1
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15/09/1989
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08/09/1989
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Mortgage
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Y2103/89
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20,000.00 CYP
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-
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Bank of
Cyprus Public Company Limited
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2
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20/12/1983
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14/12/1983
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Charge on
the Debit Debenture
|
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30,000.00 CYP
|
-
|
Bank of
Cyprus Public Company Limited
|
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3
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20/12/1983
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14/12/1983
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Mortgage
|
Y1827/83
|
40,000.00 CYP
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-
|
Bank of
Cyprus Public Company Limited
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|
|
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Total Number
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Total Amount
(EUR)
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Mortgage
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2
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102,516.09
|
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Charge on
the Debit Debenture
|
1
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51,258.04
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TOTAL CHARGES
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3
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153,774.13
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Negatives
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Bankruptcies
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Information Source
|
Claimant
|
Date of Claim
|
Gazette Date
|
Gazette Page
|
Case Number
|
Claim Αmount
|
Comments
|
|
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Request for
dissolution by a creditor
|
|
|
Provincial
court of Larnaca
|
ΚΥΠΡΙΑΚΗ
ΔΗΜΟΚΡΑΤΙΑ
ΜΕΣΩ ΤΟΥ
ΓΕΝΙΚΟΥ
ΕΙΣΑΓΓΕΛΕΑ
|
22/01/2009
|
31/12/2009
|
1160
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09/09
|
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Issue
4350B
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|
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Financial Statement
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|
Please note that no financial statements were available, up to the
date of our investigation from official sources, nor this information was disclosed
to us during our interview.
In case this
information becomes available we will update the report accordingly.
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Contact
Information
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Name:
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Kypros
Steliou
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Position:
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company
|
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Title:
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director
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Confirm general
details
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News
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http://www.cylaw.org/cgi-bin/open.pl?file=apofaseised/pol/2013/3120130228.htm&qstring=%F3.%20and%20%E1%E8%E7%E1%E9%ED%E9%F4%2A
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08/10/2013
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PANCYPRIAN LAW COURT
CyLaw |
Referring m'emas | Communication
Research - List
of Court of First Instance Decisions - Removal of Subscripts
THE LARNACA
COURT OF JUSTICE
Before : E.
Georgiou-Antoniou, Ε.Δ.
No. Education
: 2161/2010
Between:
BROTHERS
Athienitou LTD
Applicant
and
1. IMKA
QUALITY FARM LTD
2. MICHALIS
MICHAEL KALLA
Defendants
-------------------------------------------
Application
date of 8/10/2013 for
Modification
of the Claim Report
Date :
November 25, 2013
Views :
For
Applicant-Applicant: Mr. Thomas (for Mrs. Agapiou's decision to be
heard)
For the
Defendants-Defendant: Mr. Loukaidis (for Mrs Zikou's decision to be
heard)
A P C P D S H
The Claimant
Company filed an application requesting the amendment of the title of
the Claim Report so as to correct the name of the Applicant Company
and read it as " ADELPHI S. ATHINAINI LTD".
The legal
basis of the application was written in D.9 I.2 , D.25 I.1-6, D.48
I.1-9, D.64 I.1 and II, the Civil Procedure Institution as well as
the general principles of the fairness and inherent powers and the
practice of the Court.
Although the
application body states that the application will be supported by Mrs
Lambrou's oath, the application is accompanied by an affidavit by Mrs
Papagali. According to her, she is a lawyer and is well aware of the
facts of the present case. It was her record that the present action
was registered on 06/08/10 and the defense on 30/11/10. By mistake or
even by mistake or even by mistake, or by a typographical error, the
lawyer who had typed the warrant in 2010 had incorrectly entered the
name of the applicant company on the grounds that the applicant's
certificate of incorporation was not in the possession of the
lawyers.Athienitou LTD. "With the start of the hearing of the
action in an attempt to deposit the certificate of incorporation of
Plaintiffs counsel of defendants lodged a complaint and requested
time for registration of the certificate application modification. It
ends the omnyousa that at a later time from the preparation and
registration of the Claimant's Report, the plaintiff's solicitors had
been handed over to the applicant's original certificate of
incorporation, and as soon as it became aware of the mistake, the law
firm proceeded without delay In its view, the requested amendment is
necessary in order for the facts to be brought before the Court of
Justice and to avoid any injustice to the applicant's person.
Defendants 1
and 2 have responded to the application by registering an objection.
As grounds for objection listed the fact that the defense of the
defendants had been registered by 30/11/10 and in her recorded that
the Defendants were not aware of the Plaintiffs which case, Claimant
was known in this matter. Also, the Applicants did not record why
they had not made the requested amendment since 06/08/10 and had
allowed them to go for three years without any excuse.
The
Enforcement was supported by the affidavit of Mrs. Katerina Konnari,
an employee of the Law Office of Dr. You know. According to her, she
has read Mrs Lambros' oath and refuses its content, it is noted that
it was not realized that another person had made the oath statement
in support of the Application. At the same time, he claims that in
the Defense, filed on 30/11/10, the Defendants had recorded that they
did not know the plaintiff, they can not rely on the Court's help to
exercise the Court's discretion to their benefit.
Both sides
supported each other's positions with speeches. The applicant
company's side made a written statement in which it referred to the
facts as well as to the existing case-law in relation to the amendment
to the application. Mr. Loukaidis on behalf of the defendants in the
proceedings before the Court argued that one of the defendants'
substantive defenses was that no contract had been concluded with the
plaintiffs. Additionally, it was the position that the Applicants
were aware of the change of name since 18/04/11 after having enclosed
all the necessary documents in the application for a summary decision
as evidence. Where, she was intheir knowledge from 2010 the correct
name of the company, as is apparent from the letter of Mr. Thomas
dated 13/04/10. It concluded that it was not explained why the
applicant did not proceed with the modification throughout this
period.
NOMIKH P. TYXH
H D.25 I.1 of
Civil Procedure About Procedural Institutions, wherein the request is
based, provides as follows:
«1. The Court
or the Judge may, at any stage of the proceedings, allow either party
to alter or amend its indents or pleadings, in such a manner and on
such terms as may be fair, and all such amendments shall be made as
may be necessary the purpose of determining the real issues in the
controversy between the parties . »
The
corresponding English provision is D.28 I. 1. In Annual Practice 1958
, p. 622, the general principle is set out as follows:
« In Tildesley
v. Harper, 10 Ch.D. pp. 396, 397, Bramwell, LJ, said: "My
practice has always been to give leave to amend unless I have been
satisfied that the party applying was acting maliciously, or that, by
his mistake, his opponent who could not be compensated by costs or
otherwise ". "However, negligent or careless may have been
the first omission, and, however, late the proposed amendment, the
amendment should be allowed if it can be done without unfairness to
the other side. (per Brett, MR, Clarapede v Commercial Union
Association, 32 WR p.263, Weldon v. Neal, 19 QBD p.396, Australian
Steam Navigation Co. v Smith, 14 App. Hunt v. Rice & Son, 53
TLR931, CA; and see the remarks of Bowen, LJ, Cropper v. Smith, 26
Ch.D. pp. 710, 711; of Lindley, LJ, Indigo Co. v. Ogilvy, [1891] 2
Ch.39 ,; and of Pollock, B., Steward v. North Metropolitan Tramways
Co., 16 QBD p.180, and CA p.558). An amendment should therefore be
granted if, as a result, "the substantive issue can be raised
between the parties", and the multiplicity of legal proceedings
avoided.
The principles
governing the modification of proceedings have been set out and
analyzed in a number of judgments of the Supreme Court with due
clarity. Some decisions, which have been dealt with in this matter,
are also the decisions of Taxi Kyriakos Ltd N. Pavlou (1995) 1 AD.
560 , SABA & Co ( T . M . P ) v . T . M . P Agents (1994) 1 A . A
.D. 426 , Federal Bank of Lebanon v . Shacolas (2002) 1 (A) AD. 223 ,
dated 22/02/2002 and D. Aglantzias v. Hariklidis (2001) 1 AAD 1608 . A
summary of the legal principles established by the case law is as
follows:
" (1) The
modification of the proceedings is possible in all cases deemed
necessary to determine the substance of the dispute and to prevent
the multiplicity of legal proceedings. An exception is where the
modification may damage the opposing party or even where the bad
faith of the applicant is obvious.
As reported by
Supreme Court Judge S. Nikitas in Christos N. Azas (1992) 1 AA. 704
on page 707:
"The
fundamental principle emerging from the decisions is that an
amendment of a document is possible in all cases deemed necessary for
the determination of the substance of the dispute and for the
prevention of a multiplicity of legal proceedings. An exception is
the circumstances in which the amendment may cause harm to the
opposing party or even where the applicant's bad faith is obvious.
"
(2) Amendment
application deemed to cause damage to the other party when it can not
be compensated with money (see. Federal Bank of Lebanon (SAL) v. N .
Shacola , (1999) 1 A . A . D . 44.)
Modification
is generally permitted unless irreparable damage is caused to the
opposite party, that is, damage other than that which can be remedied
by issuing an appropriate order in respect of costs.
(3) It is permissible
to amend the application in the appropriate cases even when such
modification is the result of negligence or delay, provided that no
injustice will be caused to the other party who could not be
compensated for money.
(4) In
determining the interests of justice, as stated in each case, account
shall also be taken of the effect of the amendment on the rights and
interests of the opposing party. The conduct of the trial within a
reasonable time is established by Article 30.2 of the Constitution as
the fundamental right of each party (see Phiniotis v. Greenmar
Navigation (1989) 1 ( E ) A , A 33 ).
(5) The time
factor in submitting an application for amendment is relevant without
being pre-requisite and necessarily decisive (see Astor
Manu-Facturing & Exporting Co. et al., A & G Leventis &
Company (Nigeria) al. (1993) 1 AAD 726 ). However, the longer the
delay is, the greater the weight to be forfeited to accept the
treatment request. In addition, any delay must be justified.
As has been
stressed in the case of Phiniotis (above):
"... The
burden of proof for the justification of the request and the delay in
the formulation of the applicant's positions varies according to the
stage applied for. The longer the delay increases as the weight which
the applicant should shake off for the issue of an order for
modification. "See . also the case Fereos Ltd v . Martin Bros.
Tobacco Co. Inc (1997) 1 A . A . D . 378. »
(6) The
importance of the justification of the delay matter vary with the
circumstances of each case mainly in relation to the authenticity of
the applicant's intent and the need or extent of the modification
utility (see. SABA & Co. ( T . M . B .) v . T . M . P . Agents
(1994) 1 A . A . D . 426 ).
(7) The
opening of proceedings does not create an insurmountable obstacle to
the pursuit of a defense amendment. At this stage, however, the
Court's discretion is exercised sparingly, taking into account the
derailment of the trial by the determined course and the unavoidable
consequences for the adversary's rights (see Phineotis (above) and
Strintzis Lines ( Official Receiver (1995) 1 ID 607 ). The Court
faced with reluctance requests for changes in the file during the
trial (see. Kallice Holding Co Ltd v . MTR Metals (Overseas) Ltd ( A
p . 1) (1996) 1 A . A . D . 162 ).
(8) While
liberal and justifiable is the approach to the issue of amendment of
proceedings, the matter remains subject to the discretion of the
Court of Justice. The reason for exercising this discretionary power
of the Court is the whole of the facts and not only the remedy of the
consequences of the amendment independently of any other (see Taxi
Kyriakos Ltd v. Pavlos, supra). "
In the case of
Domna Christodoulou v. Athinaidos Christodoulou and others. (1991) 1
AD. 934 , the following were said:
"It is
undoubtedly a modern trend, as it emerges from the relevant case law,
that the Courts allow for modifications to appropriate cases even
when such a modification is the result of negligence or delay, of
course, without causing injustice to the other side that could not be
compensated with money. "
Very recently,
the above principles were restated in the Jamal Y judgment . Khan et
al. v . Republic of Pakistan and Attorney General of the Republic ,
Pol. Law 295/10, dated 11/07/2011 , Kostas Paphitis & Sons Ltd,
Attorney General of the Republic , Paul. Ef.204 / 2009 imer.25 /
04/2012 and more recently in D. J . Karapatakis & Sons Ltd v . Of
Strovolos Municipality Paul. Ef. 135/11 days 13/06/2013 in which the
Supreme Court adopted the rationale of Papachryostomos N. Grigoriadis
& Partners, et al, PE 79/09, d. 4/5/12 in which the following
were recorded :
«The
conclusion that can be safely deduced from the relevant case-law is
that the issue of amendment of proceedings is based on the
discretionary power of the Court which is exercised in a liberal
manner and is not governed by rigid rules but by various factors
whose gravity varies according to the circumstances of each case. The
basic principle stemming from that case-law is that where the
determination of the substance of the dispute between the parties and
the prevention of the multiplicity of legal proceedings necessitate
the amendment of the documents, the discretionary power of the Court
is in favor of the adoption of the of the claim without prejudice or
injustice to the other party which could not be compensated for by
money or the applicant does not act in bad faith. The probative
burden of justifying the request and of any delay in the wording of
the applicant's positions varies according to the stage at which the
application is made. The commencement of the proceedings does not
create an insurmountable obstacle to the pursuit of a change in court
proceedings, but the exercise of the discretionary power of the Court
at this stage is exercised sparingly. Finally, it can be said that
the introduction of a new subject does not necessarily imply the
rejection of the application, provided however that it does not have
a catalytic effect on the opposite side but the exercise of the
discretionary power of the Court at this stage is exercised
sparingly. Finally, it can be said that the introduction of a new
subject does not necessarily imply the rejection of the application,
provided however that it does not have a catalytic effect on the
opposite side but the exercise of the discretionary power of the
Court at this stage is exercised sparingly. Finally, it can be said
that the introduction of a new subject does not necessarily imply the
rejection of the application, provided however that it does not have
a catalytic effect on the opposite side.
Particularly
in what regards the issue of correcting the wrong name the key
reasons for the decision in the case Pearlman ( Veneers ) S . A . Ltd
v . Bartels (1954) All . E . R . 59 which set the following general
principle:
". this
court has ample jurisdiction to correct any misnomer or
misrepresentation at any time whether before or after judgment ...
All that is necessary to be done, which this court has ample power to
do, is to alter the title by describing the defendant in the name he
now says is his correct name. »
Modification
of a wrong name in the title of the claim was examined in the
judgment in Ferro Fashion Limited v . Fashion Box S . R . L (1999) 1
(C) AD. 1805 where the Court of Appeal upheld the first instance
decision to change the title of the claim by pointing out that the
matter was simple and further pointing out that where a simple
misspelling of a name appears, permission may be granted for
modification. Furthermore, it was decided in this decision that the
amendment of the title of the claim should refer to the whole of the
action and therefore any demarche recorded in the file is
automatically modified when the application is approved. Was said
that:
"Correcting
wrong name is a matter of going back to the discretion of the Court
which shall not allow a person to gain advantage from a wrong name
description when we all know the reality ( Williams and Glyn ' s Bank
Ltd v. The Ship " Maria " (1983) 1 C . L . R . 106 ).
In case Spyropoullos
v. Transavia Holland N . v . Amsterdam (1979) 1 C . L . R . 421 ,
where the previous name of the applicant company was modified prior
to the commencement of the claim, but the warrant had written down
the previous name of the company, it was decided that the change of
the company name would not affect its rights and obligations. It was
pointed out that it was only a lawsuit that was guided by a wrong
name and should therefore be granted a change permit .
The matter is
simple. Where a simple incorrect name description appears, permission
may be granted for modification . Alexander Mountain & Co v .
Rumere Ltd [1948] 2 All E . R . 482. The incorrect description of the
name is only an inaccurate mention of the party's name. It does not
refer to the essence of the case.
It has been
said that the wrong description of a name can not in any case be left
to influence the decision on the substance of the matter that the
court is called upon to issue, E s tablishment Bandelot n . R . S .
Graham and Co. Ltd [1953] 1 All E . R . 149 .
In the case of
Aglantzias Municipal Council, Hariklidis et al . ( above), always
with reference to English case law, it is noted that if the amendment
entails adding or replacing a party rather than simply correcting a
name error it will not be allowed.
In the present
application if the correction is allowed, since the other company is
a real person, it is at first sight shown that it is a substitute for
a party, such as the defendants' suggestion. But essentially it is
not a case that the Defendants END to confusion as to their real
adversary, but in fact remains an incorrect reference case the name
of the company. In this sense, if allowed to modify the E nagomenoi
not adversely affected in any way if they paid the costs which had to
undergo as a result of the error E nagonton.
The other
grounds for objection are basically general and do not change the
view of the thing. What could be described as a more specific
position is the defendants' position that the request was made late.
However, this does not prevent the error from being corrected, given
that despite any delay in fact the case is at a very early stage.
In the light
of all the above, authorization is granted for amendment as paragraph
A of the application. The amendment shall be made within ten (10)
days of the drafting of this decree. The costs incurred by the
defendants - on the application and against the applicants -
applicants. Costs (application and wastage) are fixed at a lump sum
of € 1250 plus VAT.
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|
http://www.cylaw.org/cgi-bin/open.pl?file=apofaseised/pol/2014/3120140117.htm&qstring=%F3.%20and%20%E1%E8%E7%E1%E9%ED%E9%F4%2A
|
19/12/2011
|
|
|
CyLaw | Referring m'emas | Communication
Research
- List of Court of First Instance Decisions - Removal of Subscripts
THE LARNACA COURT OF JUSTICE
FOREWORD : M. G. LOIZOU,
EK Application no. : 09/2013
WITH REGARD TO COUNCIL REGULATION (EC) No 44/2001 OF 22 DECEMBER 2000
ON INTERNATIONAL JURISDICTION, RECOGNITION AND ENFORCEMENT OF
JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS
-and-
WITH REGARD TO JUDGMENTS OF FOREIGN COURTS (IDENTIFICATION,
REGISTRATION AND EXECUTION OF A CONTRACT) LAW 121 (I) / 2000
-and-
RELATING TO DECISION 2880, DATE
19.12.2011 OF THE TURKISH APPOINT
BETWEEN :
OY KONGSKILDE JUKO LTD
Applicant
-and-
" ADELPHI S. ATHEINITE LIMITED" (HE 3240)
On Request
Date : 06/02/2014
Unilateral Application for Recognition of
Foreign Judgment and Recognition of Enforcement of Foreign Decision
date 16/12/2013
APPEARANCES
For the Applicant: Mr Papachristodoulou
for Papadopoulos, Lykourgos & Sia DP
INTERIM DECISION
IMPORT
With the present Application, the Applicant is exempted as follows:
" A. Decision and / or Declaration and / or Order of the
Sebastian Court recognized by Decision No. 2880 of 19/12/2011 of the
Court of Appeal of Turku, Finland, a copy of which is attached with a
certified translation as Annex A to this Application, whereby the
amount of EUR 50,000 plus interest under paragraph 4 of the Finnish
Law on Taxes to 8% from 19 January 2012 is charged as expenses
incurred by the claimants against the claimants (the decision").
B. Decision and / or Declaration and / or Order of the Sebastian
Court of Cassation pronounced as enforceable in the Republic of
Cyprus, decision No. 2880 of 19/12/2011 of the Court of Appeal of
Turku, Finland, a copy of which is attached to certified translation
as Annex A to the present Application, and in which the amount of
50,000 Euros plus interest according to paragraph 4 of the Tax Law of
Finland at 8% as of 19 January 2012 is awarded as expenses in favor
of the Applicants against the the Application.
C. Decision and / or Declaration and / or Ordinance of the Sebastian
Court registered in the Republic of Cyprus with the decision No. 2880
of 19/12/2011 of the Court of Appeal of Turkey, Finland, a copy of
which is attached with a certified translation as Attachment A to the
present Application and in which the amount of 50,000 Euro plus
interest according to paragraph 4 of the Tax Law of Finland at 8% as
of 19 January 2012 is awarded as expenses in favor of the claimants
against the Defendants the application.
D. Instructions and / or Ordinance of the
Securitate Court as if the claimants wish to exercise the legal
remedy provided by Regulation 44/2001 against the Decision and / or
the Decree and / or Declaration declaring its enforceability Such a
remedy shall be exercised and / or registered within one month of
service of and / or notification of the declaration of enforceability
and / or of this Ordinance. »
THE APPLICATION AND THE ENCLOSED DECLARATION THAT SUPPOSES THEM
The application is based on the European
Regulation (EC) No. 44/2001 of 22 th December 2000 on jurisdiction
and the recognition and enforcement of judgments in civil and
commercial matters Chapters I, II, V , VI , VII and VIII , in the
Judicial Courts Law , Laws 14 , 16 and 17 of the Law on the Judiciary
of the Republic of Cyprus , in the Civil Procedure Institutions D.1 ,
D.48 and D.5 , in the Judgments of Aliens Courts (Recognition,
Registration, Execution under Conventions) Law, Law 121 (I)
Regulation (EC) 193/2007 on the service in the Member States of
judicial and extrajudicial documents in civil or commercial matters (
"Service of documents") on 13 th November 2007, the case
law of the Supreme Court, the inherent powers and the Court's
practice.
The request is accompanied by the
affidavit of Mrs. Andrew Glykerias dated 16.12.2013, the lawyer law
firm representing the applicant in the present application, in which,
in general, on the substance of the application, states:
(a) On 19/12/2011 issued from the Appeal of Turku, in Finland, the
decision number 2880, registration number S 11/547 (hereinafter
" the decision that the decision ') which The applicant requests
that the Court be recognized as enforceable in Cyprus by this
Application.
(B) The Judgment delivered by the Court of Appeal of Turku, Finland,
within the Decision recognition process of Larnaca District Court in
lawsuit No. 323/2007, which is still pending between the applicant
and the Respondent Application.
(C) The Court of Appeal Decision of
Turku, Finland, was awarded in favor of the applicant and against
Respondent Application the amount of € 50.000 as
"compensation" for expenses before the process been
conducted.
(D) Based on the decision, that
amount of € 50.000 was directly payable by the issuance, while over
one month of its adoption, any balance of such amount will bear
interest, as paragraph 4 of the Tax Law of Finland.
(e) Pursuant to paragraph 4 of the
Finnish Law on Interest, the applicable interest rate is 7 points
above the rounded European Central Bank interest rate. In support of
this claim was presented to the opinion Court of jurist of the
Finnish law on the matter of legislation, the text of that foreign
law and online survey results from the website of the European
Central Bank in relation to the percentage of interest rates by the
essential time.
(g) According to the Decision, on
19/01/2012, the entire amount of € 50,000 began to be matched with an
interest rate of 8%, since it had not been settled.
(h) The Applicant hereby filed an
application for permission to file appeals against the Turkish
Court's judgment in the Supreme Court of Finland, which was rejected.
In the Court of Justice, among others,
the following documents were presented as Memoranda, in the affidavit
of Mrs Glykeria Andreou dated 16/12/2013:
(a) The decision of the Finnish Turkish
Court of Appeals in Finnish and its translation from the Press and
Information Office in the Greek language.
(b) An Executive Certificate issued by
the Supreme Court of Finland in accordance with Articles 54 and 58 of
EC 44/2001 dated 14/12/2012 in Finnish and translated by the Press
and Information Office in the Greek language.
LEGAL ASPECTS AND EXAMINATION OF
QUESTIONNAIRE
During the hearing of the Application
under discussion, the applicant's counsel spoke in support of their
positions and suggestions. With respect for them, for the sake of
economy of speech alone, it will be avoided to map out their
approaches to this part of the decision. In the topics discussed
below and to the extent that this is necessary, their respective
approaches will be presented.
According to Article 5 [i] of the Courts
of Justice Immigration Decision (Identification, Registration and
Enforcement Under the Convention) Act 2000 Nomos121 (I) / 2000 , the
process begins with registration in the Court by application call.
The only exception is the case where the proceedings before the
foreign court have not been challenged. From the text of the
Decision, it appears that in the proceedings before the Finnish Court
of Appeals of Finland, there was a dispute between the applicant and
the claimant [ii] . Indeed, the claimant also appears to have
appealed to the Supreme Court of Finland for permission to appeal
against the decision of the Court of Appeal of Turkey, a request
which was rejected by the Supreme Court of Finland by decision of the
date 08/10/2012 [iii] . Accordingly, pursuant to Article 5 (1) (c) of
Law 121 (I) / 2000 , this application should, upon registration, have
been served on the claimant without delay, in accordance with the
provisions of the Rules of Procedure on Procedural Rules of Service
[iv] .
The present application is made pursuant
to the European Regulation (EC) No. 44/2001 of 22 th December 2000 on
jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters , which is the substantive law to
applications their object is the recognition and enforcement of
judgments of courts of the Member States of the European Union. Under
Article 40.1 of EC 44/2001 , an application for recognition of the
enforceability of a judgment in the territory of another Member State
is "submitted" under the law of the Member State of
enforcement. In this case, on the basis of his prerogatives Article 5
of Law 121 (I) / 2000 as above. However, the provisions of Law 121
(I) / 2000 as mentioned above appear to conflict with the provisions
of Article 41 of EP 44/2001 , which provides that:
'A judgment shall be enforceable as soon
as the formalities provided for in Article 53 have been completed,
without review of the grounds for non-execution referred to in
Articles 34 and 35. The party against whom enforcement is sought may
not, at this stage of the proceedings, submit proposals '.
(emphasis and emphasis is mine)
On the basis of the principles of European law, the provisions of a
European regulation outweigh the domestic law of a Member State if
there is a conflict of rights between them [v] . Therefore, I
consider that the application does not need to be served on the
claimant on the basis of Article 5 of Law 121 (I) / 00 . The
Applicant will have the right to raise the grounds for objection
offered to him by EC 44/2001, if any, after the relevant decrees on
the recognition and enforceability of the foreign decision have been
issued, provided that, after the provisions of Articles 41, 42 and 43
of EP 44/2001 [vi] .
As a
result, having satisfied that the conditions laid down in Article 53
of the EC 44/2001 [vii] have been issued, decrees are issued as
paragraphs A, B, C and D of the Application with the following
differentiation. The paragraph 'to 8%' is deleted from each
paragraph. And this, because in the Foreign Decision, such a
reference is not made. Before the Court, testimony has been given to
the foreign law, namely the Finnish Tax Law, - both the text of the
law itself and the opinion of Finnish law in its provisions - to
prove that the welfare inthat interest under the Decision must be 8%.
However, in the context of this procedure, I consider that this is not
permissible. Under the provisions of EP 44/2001, in the context of a
procedure such as this one, the Court has the specific power, or,
more precisely, the "jurisdiction" conferred on it by
Article 41 of the EP 44/2001 . It has no discretion to add or subtract
the Foreign Court Judgment or to review it on its merits [viii] .
I understand that the reason why the Applicant seeks this addition is
because the verbal word of the Foreign Court's judgment on this part
of the party is somewhat indefinite for its purposes in Cyprus
insubsequent procedures that may be taken upon completion of the
procedure for the recognition of its enforceability. However, this is
not the appropriate step to correct or alter the Foreign Decision in
any way. It should have been possible that the proceedings had to
have been made before the opening of the present proceedings before
the Alien Court itself which issued the Decision or the Supreme Court
of Finland which issued the certificate provided for in Article 54 of
EP 44/2001, this can be judged and decided within the framework of
any procedures for the implementation of the Decision to be followed
in Cyprus, or separately, before their commencement. But I will not
take this into account here, and that is why I will not extend it further.[ix]
as well as why, when considering such a matter by the Court of
Justice, I believe, without trying to judge this issue, that it will
be necessary to hear the side of the claim.
COMPENSATION
In the light of all the foregoing, this Court hereby decides and
orders that:
A. Decision No. 2880 of 19/12/2011 of the Court of Appeal of Turku,
Finland, - a copy of which is attached, with a certified translation
in Greek, as Annex A to the present Application and which becomes
Appendix A and on the statement of the Court of Justice's decision to
be drafted by the Registrar - by which the amount of € 50,000 plus
interest under Paragraph 4 of the Finnish Tax Law from 19 January
2012 is awarded as costs to the applicant against the claimant (
hereafter referred to as "the Decision") is recognized,
registered and declared to be enforceable in the Republic of Cyprus.
B. In addition, if the Respondent Application wants to exercise under
the European Regulation (EC) No. 44/2001 of 22 th December 2000 on
jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters , an appeal against the order of the
Court under section A above ( against the declaration of
enforceability of the judgment ), such an appeal may be lodged within
30 days of service of this decree.
C. Additionally, issued a decree by which specified that in case of
failure of the Respondent Application to exercise under the European
Regulation (EC) No. 44/2001 of 22 th December 2000 on jurisdiction
and the recognition and execution of judgments in civil and
commercial matters, an appeal against the order of the Court under
section A above (against the declaration of enforceability of the
Decision), within 30 days of service of this decree, the applicant
will be able to proceeded with execution of resolution in Cyprus.
D. The costs of this Application, as these will be calculated by the
Registrar and approved by the Court, shall be awarded in favor of the
Claimant and against the Claimant, unless the Claimant exercises
within the specified time limit the European Regulation (EC) No.
44/2001 of 22 th December 2000 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial cases, an appeal
against the order of the Court under section A above (against the
declaration of enforceability of the Decision), in which case the
aforementioned order in respect of the costs of this Application will
be automatically suspended until the expiration of the appeal against
the Ordinance and made on the question of the costs of the
Application, new, comprehensive provision by the Court.
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25/11/2013
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PANCYPRIAN LAW COURT
CyLaw |
Referring m'emas | Communication
Research
- List of Court of First Instance Decisions - Removal of Subscripts
THE
LARNACA COURT OF JUSTICE
Before : E. Georgiou-Antoniou,
No. Education 2161/10
Between:
ATHEINITE LIMITED BROTHERS
Applicant
- and-
1. IMKA
QUALITY FARM LTD
2.
MICHAEL MICHAEL KALLA
Defendant
As
amended by virtue of the decree of the Court of Justice, 25/11/13
ADELPHOS
S. ATHEINITE LIMITED
Applicant
- and-
1. IMKA QUALITY FARM LTD
2. MICHAEL MICHAEL KALLA
Defendant
------------
Date:
July 9, 2014.
APPEARANCES
:
For the
Applicant: Mr Thomas Thoma (to hear Mrs Lambrou's decision)
For the Defendants:
Mr. G. Loukaidis.
A P C P D S H
The Claimant Company in its amended Claim
Report claims the amount of € 20,973.13 - for a breach of an
agreement and / or as an invoice balance and / or as a due amount and
a legal interest.
According to the plaintiff's allegations, as recorded in the amended
Claims Report, the Claimant 1 in 2009, through its Director, the
Defendant 2, had asked the Applicant or his employees as well as
their directors or officers as well offer their services, ie the sale
and / or import and / or export of agricultural products to the
Defendant 1 and the Defendant 2. The Defendant 1, through the
Defendant 2, had ordered various machinery or accessories or other
products that need zotan. The Applicant had issued in the name of the
Claimant 1 the invoices with the numbers 020028, 020029, 020030 and
020033 for the total amount of € 18,237.50-, plus VAT. The Applicant,
having fulfilled all its obligations vis-à-vis Claimants 1 and 2, had
invited them to pick up the products mentioned in the invoices under
numbers 020028 and 020029 but they never came forward with the result
that the applicant suffered a financial loss of € 3.451,50-. In
relation to the products described in the invoices under numbers
020030 and 020033, Defendants 1 and 2 or their employees had received
them and found them to be of full and perfect order, but they did not
pay the entire amount duein relation to their value and remained
unpaid the amount of € 14,786 - plus VAT. Despite the repeated
appeals of the Claimant Company and its lawyers, Defendants 1 and 2
continue to owe the claimant the amount of € 20,973.13-.
Defendants 1 and 2 in their defense refuse the Claimant's claims and
further claim that they had never entered into any agreement with the
Claimant Company and that the claim is ill-founded and fantastic and
claim to be rejected.
The Claimant Company advanced its claim with the testimony of Mr.
Kyprou Stelios Zacharias, Director of the Claimant, who filed as part
of his main examination a written statement which was marked as
Presumption 1. In his written statement, he records that the
applicant company is involved, inter alia, in purchases, sales,
imports and exports of agricultural and livestock machinery. In 2009,
Defendant 2, Director of the Claimant 1, had arrived at the premises
of the applicant company and had requested the services of the
applicant's officers and had ordered the applicant various machinery
and accessories and other products that were needed. The Applicant
Company had issued the invoices 020028, 020029, 020030 and 020033 for
the total amount of € 18,237.50 - plus VAT in the name of the
Defendant 1 invoices relating to the value of these products.
In relation to the invoice number 020028, dated 02/07/09, according
to the plaintiff's claim, Defendant Company 1 appears to have ordered
a plastic cover for mixers worth € 12, - and an original double
filter John Deer machine worth € 200-. Therefore, on the basis of
this invoice, the Entitled Company 1 owed to the Applicant the amount
of € 243.80 -. The lid was omitted from the Defendants 1 and 2 but
the filter, despite having ordered it, had not received it despite
the repeated complaints of the same. This particular filter is still
in the possession of the applicant since it is a specialized filter.
He claimed in relation to invoice 020029, dated 02/07/09, that the
Entity 1 had ordered all the products listed inthis owes the amount
of € 3,725.43-. Neither these products had been omitted by Defendants
1 and 2. With regard to the invoice 020030, dated 07/07/09, it was
alleged that a film of fret transport was ordered by the engineer of
the defendants 1 and 2 together with the his foreign employee had
applied the conveyor belt onto the machine, which the film did not
return. For these products it owes the amount of € 16.808,40-.
It further alleges that the Claimant Company had fulfilled all its
obligations towards Complaints 1 and 2 and despite having repeatedly
called on them to receive the goods and repay the price but
Defendants 1 and 2 neglected or refused to do so and the amount of €
20,973.13 is due to the Applicant Company. By letter from her lawyer
dated 13/04/10, the Claimant Company invited Defendants 1 and 2 to
come and receive the agricultural machinery and accessories they had
ordered.
Mr. Cyprus Zacharias lodged at the Court registration certificate of
the applicant Company and recorded as Exhibit 2 , certificate of
directors, which was recorded as Exhibit 3 , invoices with 020 028
numbers, 020 029, 020 030 and 020 033 and recorded as items 4, 5, 6
and 7 , the letter dated 19/07/09 which was recorded as Present 8 ,
an Account Statement as Item 9 and a Letter of the Applicant's Lawyer
as Item 10 .
Before the Court he explained that the Moldovan employee of the
Defendant 2 together with his engineer, Mr. Milha, had placed the
film on that mixer machine. It was his position that both Defendants
owed the plaintiff why on the first machine introduced and the second
one had been issued an invoice on behalf of the defendant 2 while for
the third invoice it was originally issued on behalf of the defendant
2 but on the Defendant 2 had subsequently requested him to issue an
invoice in the name of the Defendant 1 in order to be able to receive
the subsidy from the Ministry of Agriculture. That way all the money
for the machines was paid. However, the feed mixer and all its
accessories are unpaid, ie the four tariffs are unpaid.
It was
his allegation that when he handed over the second machine, the
second one, the Defendant 2 had left it for three (3) months and when
the machine chain of € 178 was returned it was removed. He claimed
that he had accompanied the Principal of the Emperor 1 and his son in
Italy to see the machines that had been purchased. In support of his
claim he submitted, as item 11, the relevant tickets. It was his own
position that the machines listed in Testimonial 6 had come to be
handed over to the Claiming Company 1. He insisted that one feed
mixer had been handed over to the Enforced Company 1 by the transport
company « Soulis"Along with a pallet accompanying it. He claimed
that Defendant 2 had personally phoned him and asked him the first
time to provide him with the film, and the second the knives for the
machine.
The offender claimed that the mixer had been delivered in 2008 rather
than in 2009, as recorded in the Claim Report filed by his lawyer.
After November 2008, it was his post, that no tradition had been
made. He admitted that Defendant 2 had ordered parts twice. The first
time he had ordered the movie and the second time he had ordered the
knives. In connection with the filter, he was claiming that Defendant
2 had ordered it and when he arrived and advised him to receive it,
Defendant 2 had told him that he had found it cheaper. This filter
was billed to Tome 4 . It was further alleged that after 17/12/07
Defendant 2 did not revisit his shop.
The questioner admitted that in relation to the two major machines
sold, in Claim 2, the corresponding invoices were also issued in the
name of Defendant 2. He also admitted that for these machines the
applicant had been paid £ 54,000; and £ 60,000 - that is, the total
amount of £ 110,000 - and that these machines had a one-year
guarantee and that their parts were not expected to be changed in one
year. At the same time, however, he insisted that these accessories
were necessary for the particular mixers since this type of mixer was
only sold to Defender 2.
He persisted in claiming that these parts had been ordered by Defendant
2 for his own mixer and he kept them up to date to be received by
Defendant 2. Asked why he had not issued an order form for the parts,
of this had been ordered by Defendant 2, it was his position that
since the Defendant 2 ordered him and had paid him the big machines,
beyond € 300,000 - he would not have asked for any signature. It then
claimed that these parts were not ordered all on the same day despite
the fact that all the invoices were issued on the same day.
For defense, a testimony was given by Michael Michael Callas,
Defendant 2, who is the director of the Defendant 1. It was his claim
to know the applicant company and its director because she has been
dealing with cows since 1980. In 2006 they had ordering a feed mixer
and in 2008 had ordered a second machine. Both in September 2006 and
in November 2008 he had made the specific orders because there was no
company. The sums of £ 54,000- and £ 60,000- were paid for each
machine. When these machines needed repair, he had phoned Mr Cyprus to
ask him the cost of the filters. Mr.John Deer had cost them at € 48 -
when he bought those particular filters from them.
It was his own claim that he had never ordered knives or screws and
had nothing to do with what the director of the plaintiff had said
about the film. The machine that was ordered and received in 2008 had
its own machines and did not need an extra movie. He admitted that
the second machine he was handing to him was writing "
recondition " from the factory. He had told Mr Cyprus that he was
not interested in a " recondition " machine, and that he
had asked Mr. Kyprou to pick up the machine, which was also returned
to him in 2008.
The fact that he had never sent the engineer Mrs. Milha to take the tape
out of the machine was overwhelming. He admitted he had sent him to
see her, and Mr. Millas found it was useless when there was no reason
to use it. He claimed that in his own machine he had simply spoiled a
tooth and had sent Mr. Milha to check that particular chain, but
because her condition was much worse than the chain that existed on
his own machine, she did not need to change it. He persisted in his
position that the existing chain of the machine was operating and Mr.
Millas had looked at the other chain preventively.
He refused the submission that he had ordered any machine from the
applicant and claimed that for the only matter he had spoken to the
director of the applicant was for the filters. Since then they had
never been in contact again. He had never had it, Mr. Zacharias, made
his claim for payment. The only thing he had done was to hand over
the invoices to the accountants of Defendant Company 1, demanding
payment.
He explained that " Z AGO " is a subsidiary of SECO , whose
representatives in Cyprus are the "Brothers of Andreou"
company. He had bought from the "Andreas Brothers" the
chain he needed. "Andreou Brothers" keep in stock a number
of parts at much lower prices than the applicant company. While the
plaintiff was asking for the € 200- filter, the Andreas Club
requested € 48-. He argued that since all these components were
marketed by the Andreas Brothers at much lower prices he did not need
to order any machine from the applicant company.
In relation to the machine that existed in the agricultural
exhibition, which Mr. Cyprus had sent them to examine, it was his
claim that it was said from the outset that there was no interest on
them and with the same person, Panagiotis Alexandrou, had returned
it.
After the testimony ended, both sides proceeded with oral speeches,
which I have in mind.
ASSESSMENT OF THE TESTIMONY
This
case will be decided on the balance of probabilities and in
accordance with the prevailing law, a witness may be partially or
totally believable (see. Attorney General v . Emmanuel (1995) 1 AAD
207 and Homer v . Republic (2001) 2 AA 506 ), and the selective
acceptance of part of the testimony of a witness is not rebuttable
(see Haris Christou v . Eugenia Khoreva (2002) 1 (A) ID 455 and Mossa
Mohamed Mustafa v . Andreas Kakouri and others (2002) 1 (A) ID No 165
). The following is a snippet of Demil Imports Exports v . Zenon
Konstantinidis (2011) 1 (A) AD. 462 :
"In civil cases such as this, proof is judged on the basis of
the balance of probabilities , while the burden of proof lies on the
shoulders of the claimants, to prove their claims for their claim.
Devaluation of this weight depends solely on the testimony that is
accepted and credible.
In the
Marcel case (above) it was stated that "The criterion is not whether
the position or version of the party onus of proof is the most likely
or contrary to that of his adversary. The criterion is whether the
party who bears the burden of proof satisfied the Court with
sufficient evidence that the position or the scenario is more likely
than not ( is more probable than not ). If he failed to prove his
position or version at that level ( standard of proof), the party who
has the burden of proof is not deemed to have departed, even if his
position or version is more likely than the opposite, that of his
adversary. (See, among others, Phipson onEvidence , 14 th Edition ,
par. 4-38 and Athanasius et al., N. Kouounis (1997) 1 (B), ID No.
614. )
I followed the two witnesses with great caution while they were
present at the hearing, and I had the opportunity to see how they
answered the various questions they were asked, their good or bad
memories, and their general behavior in the witness's dock. I have
also put before me the content of the documents submitted as
presumptions. In Homer v . Republic (2001) 2 AAA 506 , it has been
suggested that the assessment of testimony of a witness should be
based on its content, quality, persuasiveness and comparison with the
rest of the testimony.
Mr Zacharias, the director of the applicant company, did not help his
case, nor did the Court. His testimony was confused. On the one hand
he admitted that the big machines were delivered one in 2006 and the
other in 2008 and they were guaranteed. Based on this position, there
was no reason to order Defendant 2 to order any accessories in 2008
worth € 20,000 - since the big mixers were new. Further confusion was
also caused by the position put forward in the review that the
ordering of the parts for which invoices had been issued Items 4, 5,
6 and 7, was made in 2008 and not in 2009, and his assumption that
they did not need the specific equipment, complicated things more.
Why the invoices were issued one year later is also a matter of
wonder. While the question of why the Defendant ordered 2 worth € 20,000
worth of accessories - when the mixers were brand new and there was a
warranty, it was a question that was not answered.
Characteristic of the inaccuracy of his words is his claim that the
filter, recorded in Testimonial 4 , worth € 200 - was ordered on
17/12/07. Firstly, because there was no need to order a filter in
2007 after the machines were guaranteed one year, second because the
invoice was issued in 2009 and the third in 2007 the currency was the
pound and not the euro where it should have been charged in pounds.
At the same time, his admission of not changing the components of
these mixers after a year completely overwhelms the positions he has
put forward. And all this while admitting that the mixers come
complete with all their accessories.
Confusion prevailed in his mind and in relation to the two invoices,
020030 and 020033. Originally he mentioned that the products had not
been omitted, then claimed to have been omitted, while in his Claim
Report claimed that they were never received.
All of the above leads to the rejection of his testimony. I consider
it a nipple to draw any conclusions.
I take note of the positive impression I made about the Defendant 2
by watching him lodge before the Court. Defendant 2, with a
straightforward, consistent and consistent speech, reiterated the
content of the defense. In particular, he convincingly denied the
accuracy and correctness of the T- bills 4 to 7 as well as that
presented as the debit balance. His testimony is more consistent with
reason than the confused positions of the applicant's manager.
I
conclude, therefore, that the testimony produced by the applicant was
contradictory and unreliable. That's why I do not accept it and
reject it.
Having
rejected the applicant's testimony as untrustworthy, the Court can
not reach any conclusion or extract any finding. In Kades v .
Nicolaou and another (1986) 1 CLR 212 the following were reported:
' If the evidence of a witness is rejected as a bad credit, there is
nothing to weight thereafter. The rules defining the burden of proof
and the circumstances of its discharge have nothing to do with the
credibility of witnesses. A witness may either be believed or
disbelieved (wholly or in a party) according to the view taken of
this credibility by the Court. A question of discharge of the burden
of proof can only arise if there is credible evidence to the two
sides. If there is no credible evidence to support the case of the
party to whom the burden of proof lies, as in the case, there is
nothing to weigh thereafter ".
Whereas, according to the rationale of the decision Athanasios
Kouounis (1997) 1 AA. 614 on page 640:
" Unreliable testimony is not evidence. It does not prove
anything. Only reliable testimony is burdened by the probability
scale. The assessment of testimony of each witness is not measured by
the balance of probabilities but, in the judgment of the Court, for
the trustworthiness of his testimony. Unlikely, in the normal flow of
things, it is admissible if the witness finds it credible. On the
contrary, a version presumed to be correct is rejected if the witness
is deemed unreliable. »
LEGAL ASPECTS
It has ruled in a number of decisions by the Supreme Court that
tariffs alone do not have "autonomous evidence" but must be
taken into account with the rest of the evidence adduced (see
Palatino Development Ltd v Telectronics Com Ltd (2002) 1 (B) AAD 962,
Panagiotis mastro Ltd v . Furnishings Lasko Ltd (2006) 1 ( A ) A . A
. D . 728 and A. L. Mantovani & Sons Ltd. v. Christis Travel
& Tourism Ltd (1999) 1 A . A . D . 156). In addition, however, it
should be noted that tariffs are taken into account in the whole of
the testimony and taken into account by the oral testimony, Chitty on
Contracts, 24th edition p.739 and Phipson on Evidence 12th edition.
p. 1878 and Palatino Developments Limited v. Telectronics
Communication Limited ( above ).
The weaknesses in the testimony of the applicant's side inevitably
expose her claim. It is not enough for the Claimant to claim specific
amounts and to await their claim. First of all, they are obliged to
prove the conditions that created their claim ( Antoniades v. Stavros
(1998) 1 (B) AAD 1171 , Pitalis and others Savina Enterprises Ltd et
al. (1997) 1 (B) AAD 814 , 827). The Applicant has failed to show that
the version about the facts constituting the claim is more likely
than not ( is more probable than not ) ( Marcel and others v. Cyprus
Popular Bank Ltd (2002) 1 (C) A , 1858, 1868).
As a
result, the claim is rejected at the expense of Defendants 1 and 2 as
they will be calculated by the Registrar and approved by the Court.
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