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MT 21 January 2018

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50 maltatoday SUNDAY 21 JANUARY 2018 T he Court does not need to try to interpret an agreement, when the wording is clear and will apply that clear wording. This was decided in De Tigne Limited -v- Cut Coiffeur Company Limited decided on 15 January 2017 by Madame Justice Jacqueline Padovani Grima. The plaintiff company explained in its application that it rented a shop to the defendant company in Sliema. On 7 November 2008 the parties signed an agreement, where Cut Coiffeur had to vacate the premises and was to pay all rent and utility bills. A number of bills of exchange were not paid and there was an outstanding balance of €16,516. The same plaintiff company had also rented to the defendant company an office in the same building, but it vacated it without paying what was due and there was an outstanding debt of €4674.93. The company asked the Court to order the defendant company, to pay both sums. Cut Coiffeur filed a statement of defence stating that it did not owe De Tigne any money. It explained that it was owed €6988.11 by the plaintiff company. It explained that it had to vacate the office because it was not fit for purpose. It further pleaded that the action was time barred in accordance to Article 2156(f) of the Civil Code. Madame Justice Padovani Grima examined the evidence produced, where Mark Sammut in his affidavit held that the defendant company rented the office in June 2010, but rent was never paid and the utilities remained unpaid also. There was a leakage problem, but this was solved. With regard to the shop, upon the termination agreement, €58234.33 were owed by De Tigne, monies owed by Cut Coiffeur were to be set off. He confirmed that the sums mentioned in the application were in fact due. David Bajada testified explained that the ceiling of the office caved in after a downpour of rain. He informed the landlords, but they failed to do anything and therefore, his company had no option but to vacate. As to the shop, he confirmed that the agreement took place, but when the set off took place, nothing was due. The sums claimed were not mentioned in the agreement. The Court then dealt with the legal issues, namely the prescription plea. Article 2156(f) reads: "2156. The following actions are barred by the lapse of five years: (f) actions for the payment of any other debt arising from commercial transactions or other causes, unless such debt is, under this or any other law, barred by the lapse of a shorter period or unless it results from a public deed;" Article 2133 of the Civil Code further reads: "2133. Prescription is interrupted if the debtor or possessor acknowledges the right of the party against whom such prescription had commenced." In the 2008 agreement, the defendant company accepted that it owed money for rent and utilities, which sum was yet to be established. The defendants are in disagreement that the agreement bids them to pay anything else apart from the electricity and water bills. The Court quoted from a number of judgements namely John Zammit -v- Michael Zammit Tabona decided on 28 February 1997, where in the Court of Appeal, held that when he wording is clear, the interpretation of the agreement must rest of that clarity. In Anton Spiteri -v- Alfred Borg decided by the First Hall of the Civil Coirts on 30 November 2000, the Court held that this principle is derived from Article 1002 of the Code of Organisation and Civil Procedure. Other judgements have confirmed this principle such as John Spiteri -v- Popeye Investments Limited decided by the Court of Appeal on 3 November 2006, Charles Zammit Endrick -v- Direttur tax-Xogholijiet decided on 30 May 1973 by the First Hall of the Civil Courts and Lay Lay Company Limited -v- L-Ghajn Construction Company Limited decided by the Court of Appeal on 28 June 2011. The relevant clause of the 2008 agreement of the parties stipulated that the plaintiff company had to pay the defendant company €58,234.33, from which the outstanding rent and utility bills had to be reduced. The Court held that this was straight forward. Therefore, the Court cannot interpret the agreement differently. The defendants claimed that the rent referred to the rent of the utility meters. However, the Court had nothing of this and claimed that the objective meaning of the clause referred to the rent of the shop. If the parties wanted to refer to the rent of the meters, they would have said so in so much words. The Court deducted €1276.83 which reflected an expense for an airconditioner of the shop, since the claim was time barred. Then the Court ordered the defendant company to pay €15239.77. With regard to the office, the Court took into account the condition it was and the fact that there was no contestation on the large quantity of rainwater that entered the office. The defendants were allowed not to pay for the rent. Dr Malcolm Mifsud Partner Mifsud & Mifsud Advocates Opinion A planning application entitled 'to sanction gates and platform for parking space in the residence back land' was initially turned down by the Planning Commission after it held that the building in question was located outside the development zone of Gudja. The Commission objected to the fact that the car port occupied an area which was previously covered with soil. To justify its decision, the Commission gave the following reasons: • The sanctioning of the car port was not compliant with Policy 1.2D of the Rural Policy and Design Guidance (2014) which actively promotes soil conservation; • The proposal ran counter to Rural Objective 1 of the Strategic Plan for Environment & Development which protects good quality agricultural land from development. In reaction, applicant decided to appeal the said decision before the Environment and Planning Review Tribunal, insisting that the permit should have been issued. In his appeal submissions, applicant (now, appellant) argued that the illegal interventions were carried out in 'a residence already covered by a development permit'. Appellant went further to explain that he was providing a car port within the residence precincts, highlighting that off-street parking was deemed to be a requisite under normal circumstances. Applicant further observed that a deck footprint up to a maximum area of 75 square metres would have been permitted had he decided to construct a swimming pool instead of a car port. Therefore, applicant submitted that the Planning Authority should accept that 'the impact in this case does not exceed that for a pool deck' Reference was also made to clause 4 of Policy 6.3 of the Rural Policy and Design Guidance which expressly provides that planning permission may be granted for limited extensions to dwellings on condition that the resultant area is less than 200 square metres. According to applicant, the committed dwelling footprint was within the said limits. Concluding, applicant pointed out that the width of the gate was being reduced according to policy requirements. On his part, the case officer representing the Planning Authority counter argued that in applicant's case, it was 'undesirable to provide on- site parking because of the problem of soil conservation'. Policy P18 of the DC 2015, contemplating the provision of on-site parking for both residential and non-residential development, was therefore not applicable in applicant's case. On-site parking provision may indeed be done away with, so much so that a contribution to an urban improvement fund should be made if it is technically undesirable to provide on-site parking such as in this case. With regard to the dwelling floor area, the case officer argued that 'given that the existing dwelling on site is on two floors it is highly likely that the total floorspace of this dwelling already exceeds 200 square metre', however failing to state with certainty whether this was actually the case. In its assessment, the Tribunal asserted that applicant was correct to argue that a permit would have been issued had he decided to request planning permission for a pool deck up to 75 square metres. In the case under examination, the car port measured 45 square metres. Moreover the dwelling floorspace was less than the allowable 200 square metres limit. Against this background, the Planning Authority was ordered to issue the permit. Dr Musumeci is an advocate and a perit with an interest in development planning law robert@robertmusumeci.com Robert Musumeci Malcolm Mifsud No need of interpretation when the wording of a contract is clear 45-square-metre car port approved ….a permit would have been issued had applicant decided to request planning permission for a pool deck up to 75 square metres

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