Issue link: https://maltatoday.uberflip.com/i/1178032
| SUNDAY • 20 OCTOBER 2019 maltatoday 17 IF the Court establishes that a bill of exchange has an element of usury, then it is empowered not to render it enforceable. This was held in a judgement deliv- ered on 15 October 2019 in Giovan- ni Briffa -v - David Lauri, presided by Judge Anna Felice. David Lauri had filed an applica- tion, after receiving a judicial let- ter in March 2017, where Giovanni Briffa had called upon him to pay €34,900, the balance of a bill of ex- change. The application was based in Arti- cle 253(e) of the Code of Organiza- tion and Civil Procedure. He claimed that the bills of exchange were null and void in terms of Articles 966, 985, 986, 987, 990, 991 of the Civil Code, since the basis of the transac- tion is illicit. The bill of exchange covers an ex- cessive interest rate. The Courts always held that bills of exchange cannot be challenged, however, the same courts had held in previous judgements line Giovanni Briffa -v- Ronald Azzopardi, decided on 5 February 2008 that if there is a claim that the bill of exchange involved usury, then the Court deems that this is a grave and valid reason to suspend the execution of the bill of exchange. The Court in that judgement ex- plained that the law does not explain what are grave reasons, but this was done intentionally to allow the Court to exercise its discretion. Ar- ticle 986(2) of the Civil Code makes it clear that usury makes a transac- tion null and void and therefore, an action based on a bill of exchange, has the same consequence. Lauri argued that Briffa was act- ing as a bank, without the neces- sary banking licence. The Banking Act stipulates that no person can act as a bank without a licence. This includes holding deposits, lending money or collecting money from the public. In Ian Pecorella -v- Sorereign Ca- terers Limited et decided on 3 Feb- ruary 2012, the Court established that there was an exchange rate of foreign currency without a license and therefore, the bills of exchange issued were declared null and void. Giovanni Briffa replied to the ap- plication, by stating that Lauri was in business with his father and brother. Briffa has a commission agency business and acted as a broker for import and export of products that the Lauris required. Briffa had lent money to Lauri in 2013 and as a guarantee, he gave a bill of exchange, which was due for payment on 1 September 2014. On that date there was a balance which was still owed. Briffa claimed that there was no usury. Madame Justice Felice pointed out that Article 253(e) of the Code of Organisation and Civil Procedure states that bills of exchange are an executive title, as long as the Court does not suspend its enforceability. Briffa had filed a judicial letter to render the bill of exchange enforce- able for the amount of €34,950 of the original amount of €65,000. However, Lauri objected to this on the basis that there was usury and that Briffa acted as a bank without a licence. In Giovanni Briffa -v- Ron- ald Azzopardi, the Court had held there are two instances where ex- ecution of a bill of exchange may be suspended. The first being that the signature is not of the person it purports to be. The second, is that a party claims that are grave and valid reasons to oppose its execution. In this second instance, the reason can- not be frivolous, as the law says it must be grave. According to the evidence pro- duced, Lauri's father had borrowed a large amount of money with usury from Briffa's father, Emanuel Briffa. The Court was skeptical on Briffa's version of events, since he had lent the Lauri brothers over €658,000 in three years, and there is no written agreement between the two on such a big amount. On this basis the Court upheld the request to suspend the enforceabil- ity of the bill of exchange. Bills of Exchange will not be enforced is they are a result of usury LAW Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING AT issue was a planning application contemplating the conversion of do- mestic stores situated on the roof a residential complex to an 'independ- ent residential unit'. The site in question falls within an area designated for residential use. Despite there should have been no objection to the proposed use, at least by way of principle, the Planning Commission rejected the proposal since the development ran counter to the provisions of policy P35 of the Development Control Design Policy, Guidance and Standards 2015. The Commission underlined that 'the obligatory one-metre parapet wall above the setback floor level' (that is to say the opramorta sur- rounding the roof of the stores in question) was not provided. The said parapet wall is consid- ered necessary to screen any services placed directly on the roof such as so- lar water panels and water tanks. As a result, the Commission ob- served that that the proposal was in breach of Urban Objective 3 of the Strategic Plan for Environment and Development which aims to protect and enhance the character and amen- ity of urban areas. In response, applicant lodged an appeal against the aforesaid decision before the Environment and Planning Review Tribunal, highlighting various instances where a permit was issued for a building complex despite not having a one-metre parapet wall sur- rounding the topmost floor. Even so, applicant (now, appel- lant) contended that the original permit was subsequently amended through a minor application by way of which the height of the 'store' was increased to 2.6 metres to meet sani- tary standards. The Authority however rebutted by saying that applicant was trying to mislead the Tribunal. The case officer representing the Authority pointed out that the stores which applicant was intent on con- verting into a residence were ap- proved with a clear internal height of 2.37 metres with an overlying one- metre opramorta when measured from top of the slab. The officer acknowledged that the original permit was amended, adding however that applicant was wrong to assert that permission was obtained to amend the said clear height. In its assessment, the Tribunal ana- lysed the arguments brought forward by both parties. In particular, the Tribunal observed that the original permit was amended through a second application. Nevertheless, the Tribunal noted that the stores which applicant was intent to turn into a dwelling were not colour coded so as to indicate that a change in height was taking place. In turn, the Tribunal concluded that the Authority was correct to as- sume that the store had a clear height of 2.37 metres as held in the original pemit, thus failing to meet the mini- mum clear height requirements for dwellings. Against this background, the Tribu- nal confirmed the Authority's deci- sion to reject permission. Absence of colour implies that no change took place robert@robertmusumeci.com ASK ROBERT mmifsud@mifsudadvocates.com.mt ASK MALCOLM LAW & PLANNING