Issue link: https://maltatoday.uberflip.com/i/1165935
| SUNDAY • 15 SEPTEMBER 2019 maltatoday 15 CULTURE ENVIRONMENT LAW & PLANNING A person who accepts another as their mandatory through a power of attorney agreement cannot escape li- ability by stating that they were not aware of the contents of the agree- ment because they were in Maltese or English, rather they should seek advice before signing the agreement. This was explained by the First Hall Civil Court presided by Hon. Mark Chetcuti in the case of Olivia Mallia vs. Inna Sergeevna Furtseva et. The Court heard the claims by the plaintiff who stated that in September 2010 she appeared as the guarantor for the defendants who happened to be her brother and his wife. This oc- curred after her brother explained that he needed the loan to open his own business. Through this contract the defendants entered into a loan agree- ment with HSBC bank for the amount of €175,000. However in 2012, the defendant Terrance Gialanza, repre- sented in court by appointed curators, disappeared from Malta and in fact a magisterial inquiry had taken place to determine his whereabouts. Gialanza has made no contact with his sister nor his wife since that time. Once the defendants no longer made the bank payments, the plaintiff was called upon to fulfil this obligation. She did so and paid the amount of €78,340 to date to the bank but was, however, refunded €48,000 by the defendants' father. She was therefore suing the defendants to refund her the remaining sum of €30,000. The defendant Furtseva held that she did not owe the amount to the plaintiff since she was not the one who signed the agreement with the bank for the loan. She explained that she had ap- pointed the plaintiff as her mandatory through a power of attorney agreement but was under the impression that the plaintiff would be using the power given to her to sign a paper which re- lated to the property shared between the defendants. Instead she found that the plaintiff has used her power to ap- pear and sign the loan agreement. She explained that at the time she was trav- elling to Russia a lot and therefore her husband asked her to give his sister the power to sign official documents for her. She stated that the loan agreement was signed without her knowledge and that she should therefore not be held responsible to refund the plaintiff for the loan payments. The Court first explained that the main article speaking about the re- sponsibilities of the mandatory is Arti- cle 1874 of the Civil Code. The Court explained that what had to be proven by the defendant is that the plaintiff acted negligently in performing her duties and that she did not fulfil the fi- duciary obligations that the Civil Code requires of mandatories under Article 1124A. The Court explained that the first thing that had to be established was whether the power of attorney agreement was general or specific. The Court heard the testimony of Notary Patricia Hall who stated that on the day of the signing of this agreement she ex- plained to the defendant that this was a general power of attorney agreement which included the ability of the plain- tiff to sign a loan agreement and what the consequences of this was. She ex- plained in English and confirmed that the defendant understood the con- tents. The Court did not accept the defend- ant's plea that she did not understand the contents of the agreement because she spoke neither Maltese or English. The Court held that if she did not un- derstand the contents of the agreement it was her responsibility to ask for legal advice or to ask questions before sign- ing the document. Furthermore, the Court noted that in the sanction letter for the loan that was going to be taken by the defendants, Furtseva's signature was present. This means that she did indeed have knowledge of the loan and should have understood the contents before signing or should have asked for help. The Court concluded that the de- fendant did not adequately prove that the plaintiff was in mala fede. It held that it was clear that the plaintiff had nothing to hide and had been making the loan payments and was entitled to reimbursement. The plaintiff also did not derive any personal benefit or gain from her po- sition as mandatory. It held that in ac- cordance with Article 1942 and 1946 of the Civil Code guarantors have every right to be reimbursed for the expenses they incurred and that the loan agree- ment was valid, and was for all intents and purposes of the law was signed by the defendant. It upheld the plaintiff's claim and ordered the defendants in solidum to pay the sum of €30,340 with all the legal expenses and tax. POAs: Mandators cannot escape liability if they cannot read Maltese or English LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING AT issue was a planning application for the construction of an additional floor over an office complex in Mrie- hel. Permission was yet denied after the Planning Commission held that the proposed height was to exceed the set Local Plan height limitation and the corresponding height in metres as held in the Development Control Design Policy, Guidance and Standards 2015 (in this case, 17.5 metres). Furthermore, the Commission ob- served that the building was caught between two streets and the design should be stepped down to reflect the profile of the existing topogra- phy. As a reaction, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that he should have been granted permission. To substantiate his arguments, ap- plicant (now, appellant) held that his premises were located within the Imriehel Industrial Area, which zone was not subject to a set height limi- tation. Appellant further contended that the Authority had approved other buildings which were indeed higher than what he was about to propose. At one point, appellant acknowl- edged that the building would con- sist of three floors and two receded floors. Still, appellant contended that when viewed from Triq I-Imdi- na, his property would be seen to be on three floors and a receded floor. This meant that the envisaged con- struction would not have 'a deleteri- ous effect on the surrounding area or a negative visual impact'. As a final point, appellant remarked that the 'additional floor' was not meant for resale but only intended to consolidate his ongoing business activity. In reply, the Authority stood firm with its decision to refuse the per- mit. The case officer made reference to policy P2 of DC 2015, which sim- ply acknowledges that buildings hav- ing "frontages on two streets located at different site levels", such as the one under examination, were critical in terms of design. The case officer highlighted the importance that any new design fits 'seamlessly as possible' within the particular topography reflecting the profile and basic contours/levels that characterise the particular site and not compete with them. According to the officer, the pro- posed additional floor would im- pact negatively on the exiting street topography since it 'will be more of a competing player rather than re- flecting the profile and basic con- tours/levels of this particular site.' In its assessment, the Tribunal im- mediately observed that the proper- ty in question had two frontages on different streets. The Tribunal noted that the Au- thority was concerned with the fact that the topmost floor was not ad- equately receded so as not to extend beyond the set 17.5 metre height. The Tribunal also found that the buildings which were approved in the vicinity of the site were not high- er than 17.5 metres as had been pre- viously alleged by appellant. The Tribunal went on to conclude that it was willing to accept the pro- posal so long that a best fit line link- ing the maximum permitted height of 17.5 metres from the lower street frontage to the higher street front- age was drawn and any building vol- ume extending beyond the said line be compensated by an equivalent to- tal void below that same line. Planning around the 'best fit line'