Issue link: https://maltatoday.uberflip.com/i/1219206
maltatoday | SUNDAY • 8 MARCH 2020 19 LAW Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates THE law provides circumstances in which a garnishee order may be revoked and this is done when the alleged debtor provides an alternative guarantee or security. This was decided by the First Hall of the Civil Courts, presided by Mr Justice Robert Mangion on 2 March 2020 in Carmelo sive Karmenu Scicluna -v- Alexander Fenech and Analise Fenech Ancilleri. Alexander Fenech presented an applica- tion asking the Court to declare that there are sufficient guarantees to satisfy a claim made by Scicluna when he filed a garnish- ee order against him. Fenech also asked the Court to revoke the garnishee order or alter- natively order Scicluna to give a guarantee for eventual damages and penalties in terms of Article 838A of the Code of Organisation and Civil Procedure. Mr Justice Mangion saw the facts of the case where Scicluna filed a garnishee order of €160,000 against Fenech and Fenech An- cilleri which is the balance owed to them in a transfer of shares in a company, which trans- fer took place in December 2017. This appli- cation is based on Article 836 of the Code of Organisation and Civil Procedure (COCP), which allows a counter-warrant of a precau- tionary warrant in certain circumstances. In this particular case the applicants, Fenech are saying that there are alternative guaran- tees which would satisfy the claim. The law precludes the Court at this stage to examine the merits of the case. The merits are to be examined in a lawsuit. The procedure to revoke a warrant in terms of Article 836 of the COCP, is not an appeal of the decree which allowed the garnishee order. The law provides that if the circumstances change or else an ade- quate guarantee is given, the warrant may be revoked. On the other hand, if there is no ground on Article 836, then the defendant would have to file a separate action. This was held in Howard Stanley Kreiss -v- Patrick Zrinzo decided on 3 August 2009, where the Court examined the procedural issue, as a matter of public order, which may be raised by the Court. Precautionary warrants are decided by decree and not judgements. The decree may be attached by filing a new court case. Article 836(1)(c) reads: " 836. (1) Without prejudice to any other right under this or any other law, the per- son against whom any precautionary act has been issued, may make an application to the court issuing the precautionary act, or, if a cause has been instituted, may make an application to the court hearing such cause, praying that the precautionary act be revoked, either totally or partially, on any of the following grounds: (a) that the precau- tionary act ceased to be in force; (c) that other adequate security is available to satisfy the claim of the person at whose request a precautionary act was issued ei- ther by the issue of some other precaution- ary act or if such other security can, to the satisfaction of the court, adequately secure the claim; "The Court will not limit itself to the valua- tion of the property but it will also enter into the hypotheses that burden the property. There is no evidence that the property of- fered as an alternative guarantee is free from other guarantees. In a previous judgement Ranger Company Ltd. vs Euro Imports Ltd. decided on 20 February 2003 held that such guarantees have to be effective. In this par- ticular case Fenech did not present the Pub- lic Registry searches which would indicate whether there are any hypotheses on the property. Therefore, the Court ruled that the guarantees offered by Fenech & Fenech Ancilleri are insufficient. Fenech and Fenech Ancilleri are asking the Court to impose a guarantee on Scicluna in order to pay for potential damages incurred from the filing of the garnishee order. Arti- cle 838A reads: "838A. It shall be lawful for the court, on good cause being shown, upon the demand by application of the person against whom a precautionary act has been issued, to order the party suing out the warrant to give, with- in a time fixed by the court, sufficient securi- ty for the payment of the penalty that may be imposed, and of damages and interest, and, in default, to rescind the precautionary act." The law binds the party requesting this guarantee to show that there is a good cause, together with other reasons. In Charles Dar- manin -v- Albert Cachia decided on 31 July 2007, the Court held that this good cause is not the mere fact that the warrant was is- sued and neither that the subject person of the warrant is now suffering damages. The damages have to be a direct result of the garnishee order. The law wanted to create a balance between safeguarding a claim and safeguarding the debtor's claim to damages due to a malicious and fraudulent warrant. If the warrant is excessive or vexatious, then the person issuing the warrant would be condemned to pay a penalty or even dam- ages. In this case, Fenech and Fenech Ancilleri failed to show prima facie that the warrant was frivolous or excessive and therefore, the Court also turned this request down. Alternative security is required to remove a garnishee order LAW AT issue was a planning application for the addition of a receded floor on the rooftop of an old dwelling in Triq Cornelio, L-Is- la. To give some perspective, the proposed structure would rise some 4 metres above the existing roof level. In all, it will cover a roofed area of circa 50sq.m. After noting that the said struc- ture was adequately receded from the front alignment and that the Superintendent for Cultural Heritage had no objection, the Planning Authority issued permission. Indeed, the Superintendent had said that the proposal was not objectionable, provid- ed that it was in line with current policies and the rooftop services were 'adequately screened from view or relocated to a low- er level.' Moreover, the Planning Directo- rate had also described the receded floor as a 'visually permeable structure' that was 'sympathetic with the surroundings aimed at improving the amenity of the roof area of the applicant's property'. Not only that, but the case officer had noted that the propos- al would screen an otherwise blank party wall. All things considered, the works were thus seen to be in line with the provisions of the Strategic Plan for the Environment and Development (SPED) and the Grand Harbour Local Plan. The said permit was appealed before the Environment and Planning Review Tri- bunal by a registered objector who asked for its revocation. During the application process, the objector voiced concern with regard to the fact that the receded floor would 'irrevocably alter the skyline of the area and the new building will not be con- sonant with the adjacent old buildings'. The objector had further alleged that the proposed design would not add to the dis- tinctive Maltese identity and character of the urban area, adding that it will reduce 'that distinctiveness already present'. In his appeal application, the objector took issue with the fact that the propos- al was in breach of sanitary regulations. On this point, the Tribunal, however, said that it was not competent to decide over sanitary issues emanating from the Police Laws. The Tribunal observed that it was only after the application was assessed in terms of the Police Laws that new sanitary regulations over which it had competence to decide (namely Legal Notice 227 of 2016) took effect. Following the Tribunal decision, the objector went straight to court, where he pointed out that in deciding not to assess the sanitary issues, the Tribunal had abdi- cated its responsibility. In response, the court agreed with the ob- jector since for development applications which were validated prior to the 10th June 2016, the applicant could, within two months from the 10th June 2016, request the Authority to determine his application under the provisions of Code of Police or under the provisions of the new regula- tions. If no communication was forthcom- ing, the application had to be determined according to the new regulations (namely Legal Notice 227 of 2016), over which the Tribunal had jurisdiction. The court went on to observe that in this case, applicant had made no communica- tion with the Authority to have his case evaluated in line with the Police Code. Consequently, the case had to be assessed in line with the new sanitary regulations. For this reason, the court ordered the Tri- bunal to reassess the case in light of the new sanitary regulations. The case was duly remitted to the Tri- bunal for the application to be considered in line with the new sanitary laws. In its reassessment, the Tribunal noted that, according to the new sanitary regulations, 'façades could be higher than as provided in the regulations' if such a design solution would be better in light of the surround- ing context. The Tribunal analysed the design pro- posal as well as the surrounding context and found that an exception to this effect was merited, the more so as the SPED re- quires that building heights within Urban Conservation Areas should be based on a context driven approach. More so, the Tribunal underlined that, from a design standpoint, the proposal would result in a 'stepping effect' solution. On this basis, the appeal was rejected and permission was confirmed. Decision to allow roof extension in l-Isla confirmed PLANNING Dr Robert Musumeci is an advocate and a perit having an interest in development planning law