Issue link: https://maltatoday.uberflip.com/i/1055420
maltatoday 13 | SUNDAY • 25 NOVEMBER 2018 CULTURE ENVIRONMENT LAW & PLANNING THE First Hall of the Civil Courts ordered man to pay damages after he participated in a fraud by issuing cheques which were not honoured. This was held in a judgement delivered by Mr Justice Lawrence Mintoff on 16 November 2018 in SG Marketing Lim- ited -v- Silvio Sciberras. SG Marketing filed an application where it explained that it imported bottled water to Malta and it issued three invoices to the defendant, Sil- vio Sciberras. Sciberras issued three cheques which covered these invoices and due to this they took in posses- sion the water he ordered. The de- fendant gave instructions to the bank to block the cheques and therefore, they bounced. The company insisted the invoices be paid and the defendant issued another cheque, but this also bounced. The plaintiff company asked the court to declare that this was fraud and to liquidate the fraud. The defendant presented a state- ment of defence by stating that he did not have any judicial relationship with the company and that he did not owe any money. The background of the case con- cerns the defendant's sister, Joanne Sciberras who ordered several pallets of bottled water imported from out- side Malta. The defendant issued the cheques, which cheques bounced. The defendants took the merchandise but then instructed the bank not to hon- our the cheques. The plaintiff com- pany alleged that this is tantamount to fraud, since the defendant did not have money in his account to cover the amount. Furthermore, although there were lack of funds, the defend- ant failed to return the pallets of water. Mr Justice Mintoff analysed the evi- dence produced, mainly copies of the invoices totalling to €60,711.48, and the copies of the cheques. A num- ber of witnesses were also produced, such as the managing director of the plaintiff company. He explained that Joanne Sciberras paid for the bottled water, they had imported and there- fore she was allowed to withdraw this merchandise and it was also with- drawn from Customs. The merchan- dise was distributed to various outlets and she was paid for the stock. After the three cheques bounced the de- fendant then issued one single cheque for the total amount. Another witness was a business which was ready to purchase the water. Joanne Sciberras asked for €28,000, because the water was held by Customs and had to first pay the duty before delivering. A son of a friend of hers made the payment but the merchandise did not arrive. Everyone concerned was worried on the state of affairs and the police was called in. The freight forwarder involved, testi- fied that he was approached by Joanne Sciberras to collect six containers im- ported by SG Marketing Limited. His services were paid by the company. Joanne Sciberras gave the instructions where the merchandise had to be de- livered. A police inspector also testi- fied confirming the defendant and his sister were investigated. The Court pointed out that the de- fendant's sister had entered into an obligation with the plaintiff company for it to import the products ordered. In fact, there are separate proceed- ings which were instituted against her. However, the cheque issued for this transaction was that of the de- fendant. Not only that, when these cheques were not honoured, he issued another cheque. Article 1149(1) of the Civil Code states: "1149. (1) A creditor cannot refuse payment tendered by a third party, if the debtor is benefited thereby." The Court explained that the two elements constituting fraud in Civil and Criminal law are deceit and profit. The defendant can argue that he was not the one who negotiated with the plaintiff company, but his actions were dishonest and were done in bad faith. When he issued the cheques he allowed his sister to withdraw the merchandise and then instructed the bank not to cash them. Then he is- sued a new cheque, giving the bank the same instructions. He then failed to take action to return the stock to the company. Mr Justice Mintoff quoted from Article 1028A(1) of the Civil Code, which reads: "Whosoever, without a just cause, enriches himself to the detriment of others shall, to the limits of such enrichment, reimburse and compensate any patrimonial loss which such other person may have suffered." The Court then ordered that Sciber- ras pay the company €60,711.48 for his fraudulent acts. Person responsible for damages due to bounced cheques LAW APPLICANT had his proposal to ex- cavate a site and build seven residen- tial units turned down by the Planning Commission. The site borders Triq Sammy Bartolo in Mellieha, over- looking a valley. According to the ini- tial drawings, two of the seven dwell- ings were to be located below street level, facing the valley whilst lacking direct outlook from a schemed road. To justify the decision, the Com- mission held as follows: 1. The proposal was in breach of policy P38 of the Development Control Design Policy, Guidance and Standards 2015, since the drawings showed three independ- ent dwelling units below street lev- el; 2. The proposal ran counter to policy P45, which does not per- mit development without a proper outlook; 3. Unacceptable additional on-street car parking was envisaged since on site parking was not pro- vided. This was not in the interest of the amenity of the area. In reaction, applicant appealed the decision before the Environment and Planning Review Tribunal, in- sisting that the Commission's deci- sion should be revoked. Applicant, now appellant, submitted that the Commission held two sittings prior to refusing his application. During the first sitting, applicant alleged that he was given the impression that the Commission would accept his application subject to making a financial contribution towards the Urban Improvement Fund as an alternative to providing onsite parking. In addition, applicant sub- mitted that his proposal would be revised in such manner so as to interconnect the basement dwell- ings with the habitable units above street level. In reply, the Authority made ref- erence to the fact that appellant was intent on revising his proposal. This, according to the case officer, went to show that the Commission was correct in refusing the applica- tion. The Tribunal was further remind- ed that were such changes allowed at this late stage, the revised pro- posal would need to be reassessed by the sanitary officer. For this rea- son, the Tribunal was requested to confirm the decision, the more so since applicant had already been re- quested by the Commission to ad- dress the reasons for refusal For its part, the Tribunal took note of applicant's latest drawings, despite such changes being made at appeals stage. Having said that, the Tribunal felt that the proposal should be limited to having two levels below street level, instead of three. Against this background, the Tribunal ordered the Authority to issue the permit. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Applicant decides to scale down proposal at appeals stage mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates