Issue link: https://maltatoday.uberflip.com/i/1513303
maltatoday | SUNDAY • 17 DECEMBER 2023 11 LAW CLASSIFIEDS LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates A legislative intervention is re- quired for the one-month time limit to start to run from the ser- vice of the other party to decide on the revocation of executive acts. This was held in a court decree delivered by the First Hall Civil Court in Teufl Siegfried noe vs TSG Interactive Gaming Europe Ltd, presided over by Honourable Justice Toni Abela on 11 Decem- ber 2023. In this case, the respondent obtained a garnishee order to execute a judgment delivered by an Austrian Court against the applicant company, registered in Malta, to provide online gaming services duly licensed by the Mal- tese Regulatory Authority. Prior to the current granted garnishee order, there was al- ready a similar attempt against the applicant Company through another garnishee order, which was refused. In this instance, the respondent had filed for the granted garnishee order while a different judge was on duty. On the other hand, the appli- cant company is requesting the garnishee order be revoked based on Article 281 of the Code of Or- ganisation and Civil Procedure (Chapter 12 of the laws of Mal- ta), which is the article of law to impugn executive acts. The ap- plicant company states that once the first order was rejected, the respondent could not resort to another warrant ex-novo. Primarily, the Court made ref- erence to sub-article 3 of Article 281, which states that: "The court shall decide on the application af- ter hearing the parties and receiv- ing such evidence as it may deem fit, if it so considers, within a peri- od not later than one month from the filing of the said application." Here, the Court remarked that it is unreasonable for such an application to be decided within one month of filing of the appli- cation since such a term is not al- ways easily achievable. The Court added that one has to consider that within one month of filing, the application has to be notified to the other party, which is not al- ways achieved with ease. Further- more, time must also be given to the respondent party to reply. This Court believes that there must be a legislative intervention for the one-month time limit to start to run from the other party's service, as in the case of a prohib- itory injunction as stipulated un- der Article 875 of Chapter 12 of the Laws of Malta. The Court, quoting recent judg- ments, stressed that the reasons for requesting the revocation of an executive act under this article have been broadened. The Court also remarked that matters of a procedural nature are of pub- lic policy and that no Court can move away from what the proce- dure dictates. The Court stated that the ar- guments put forward in these proceedings as to where the reg- ulation should apply, are all argu- ments that could be valid if the respondent had chosen to oppose the decree that rejected the first garnishee order. However, the Court noted that the respondent is correct to complain that there is no ar- ticle equivalent to Article 836 of Chapter 12 of the laws of Malta in the case of a precautionary warrant or an article similar to Article 281 to give remedy when a warrant is refused. The Court remarked that legislative inter- vention is needed here because it does not appear the law provides for the procedure with such clari- ty to the creditor in case of refusal to issue any warrant. The Court, however, recalls that according to article 32(2) of Chapter 12 of the laws of Malta, the Civil Court shall hear all cas- es of a civil or commercial nature and all those other cases which the law expressly states should be seized. This is a residual power of the Court in guaranteeing that wherever there is prejudice to a right, a remedy should be grant- ed. It is, therefore, not the case as it is claimed that the respondent had no effective remedy. The Court noted that once the elements for an executive gar- nishee order are satisfied as pro- vided for by Articles 375 and 376, it is obliged to decide on the case. However, it does not mean that it would necessarily be upheld. The Court affirmed that in the present case, this has to be taken in the context of the first garnish- ee order sought and not on the second one. Especially since the first garnishee order was already rejected; otherwise, it would re- sult in a case of forum shopping, which is abhorrent in the admin- istration of justice. Furthermore, from an examina- tion of the acts, it results that what was requested in the second war- rant, does not present any new facts and circumstances of sub- stance than those of the first war- rant. This Court remarked that if the respondent had reached out to inform the Court that anoth- er warrant had already been filed and which warrant was rejected, that Court would undoubtedly have rejected the second warrant. In these circumstances, this Court arrived at the same con- clusions, that the applicant Com- pany has a valid reason to why it should overturn the merits of these proceedings. Therefore, the court upheld the first request of the applicant Company and revoked the execu- tive act - the garnishee order and consequently upheld the second request and ordered the issue of the appropriate counter-warrant with service according to law. In light of the observations made on the necessity of a change in the law, the Court ordered a copy of this decree to be served on the Commissioner for Laws. 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