Issue link: https://maltatoday.uberflip.com/i/1522936
8 maltatoday | SUNDAY • 23 JUNE 2024 LETTERS & LAW Letters to the Editor Law Report Industrial action unfair on MCAST students IT is totally unfair that MCAST students are being deprived of their exam results because lecturers have a dispute with the college. Lecturers have a right to take industrial action to protect their rights and demand better pay but should their students be made to suffer for it? I don't think so. The situation is causing unnecessary anxiety among students. If the dispute drags on, the college management must take all necessary steps to publish the exam results, even if this means taking lecturers and their union to court over this specific matter. The exam marks are awarded by lec- turers but do not belong to them. Stu- dents have every right to know how they have performed and the marks should be delivered in a timely manner. Making students pay for their griev- ances does lecturers no good. How can they demand respect from their students when the first thing they resort to in a dispute is withholding exam marks? Whereas I deplore this type of indus- trial action, I also criticise the college management for procrastinating on reaching a deal with the MUT for im- proved wages. There is no logic in leav- ing collective agreements to expire and then keep dragging on talks for months on end. Such a situation is unfair on lecturers and it must be addressed by the government if the college is unable to close the deal. J. Dimech Paola THE lack of a statement of defence does not mean that the Defendant is admitting to the claims filed by the Plaintiff. This was held in a judgment delivered by the First Hall of the Civil Court in Sunshine Aviation Limited vs Skyfirst Limited. The court was presided over by Mr Justice Giovanni Grixti. The Plaintiff Company Sunshine Avia- tion Limited presented a sworn applica- tion in which it explained that the dispute between the parties was with regard to a Temporary Aircraft Management Agree- ment dated 7 April 2014. The Plaintiff Company had to offer technical services to an aircraft registered in Malta. The final agreement was not signed and therefore the Plaintiff company sent a termination notice on 7 September 2014. The De- fendant company held on to the aircraft's documents in breach of the agreement. The Defendant company did engage an- other service provider. Since the aircraft depreciated substantially the Plaintiff suffered substantial damages. The Plain- tiff referred to another action where it is the Defendant, but these damages were not part of the proceedings. The Plaintiff asked the court to award it damages. The Defendant did not file a statement of defence and was declared in default. The Plaintiff company produced the re- lations manager of Costruzioni srl, and Italian company, which has a 15% stake in Sunshine Aviation Holdings Limited, which has 99.91% in the Plaintiff compa- ny. He explained that after the termina- tion of the temporary agreement the par- ties discussed how to move forward but no agreement was reached, until the De- fendant filed an action against Sunshine Aviation Limited. This action is now be- fore the Court of Appeal. In July 2015, the aircraft was to have its maintenance done by a company by the name TAG Aviation. The Defendant blocked this, even though the Defendant was prepared to pay for the maintenance. The Defendant wanted a guarantee that the Plaintiff would pay it all the pending dues. A new aircraft man- ager was appointed but the aircraft doc- uments were held by the Defendant and the aircraft did not fly for two months and no maintenance was done. A London law firm was engaged to negotiate the control and payment of the aircraft. In September 2015, Sunshine Aviation took possession of the aircraft documentation following a warrant of seizure. The warrant was then withdrawn. The aircraft was then sold by the Plaintiff company in February 2018 for USD3 million. Skyfirst offered to pur- chase the aircraft for USD3.5million. This was turned down since the aircraft was valued at USD10.9 million, but offered to sell it for USD8.5million. Furthermore, the owners of Costruzione srl were entangled in legal proceedings with the Albanian government and held that this was an abuse of power of the po- lice for political reasons. Skyfirst took ad- vantage of this and managed to block the sale of the aircraft. The Plaintiff had a temporary arrange- ment to fly the aircraft in April 2014, but there was no permanent arrangement. Although the agreement lapsed in May 2014, Skyfirst still was the registered op- erator, and it was in control of the aircraft. Skyfirst blocked the aircraft receiving maintenance. The Defendant Company, Skyfirst has a claim of €274,513 on works carried out on the aircraft. The Plaintiff in the same action is asking for the liquida- tion of damages. This action is still pend- ing on appeal. The Court held that case law shows that the fact that a defendant does not file a statement of defence does not mean that he or she is admitting to the claims pre- sented by the plaintiff. This was held in Francis Busuttil vs Mary wife of Anthony Azzopardi et, decided on 25 January 2023. The Court held that it must see whether the claims have been proven. Article 562 of the Code of Organisation and Civil Procedure dictates that who alleges must prove the case. In Eucharisto Zammit vs Eustracio Petrococchino noe., decided on 25 February 1952, the judge must decide whether to uphold a claim when he/she is morally convinced that the evidence is sufficient. The level of proof in civil case is that of probability. The Court then moved on to see wheth- er correspondence between lawyers on a without prejudice basis is admissible as evidence. The Court held that it was not to take into account this type of evi- dence and held that this evidence should not have been presented to it. The Court pointed out that the 7 April 2014 tempo- rary agreement was never filed. From the admissible evidence, the Court concluded that there was a contractu- al relationship between the parties from April 2014 until September 2015. Sun- shine Aviation did not take any steps to terminate that agreement in September 2015 and it knew that Skyfirst was in pos- session of the aircraft. It took possession of the aircraft's documents in November 2015. In March 2017 the aircraft was val- ued at $10,853,000 but in October 2017 Sunshine Aviation was prepared to sell it at $4,500,000 which included a set off of the claims made by Skyfirst. The Plaintiff company failed to explain to the Court what happened to the aircraft after De- cember 2015. In the sale contract, there was written that the aircraft was not air- worthy and that it had taxes to pay in Switzerland. Skyfirst pointed out in its submissions that no explanation was given on why the aircraft was not sold and no maintenance was given and Sunshine Aviation just made a vague declaration, but no objec- tive evidence was provided. As such the Court was not convinced that Skyfirst should be held responsible for the reduc- tion in value of the aircraft. The Court then moved to turn down the Plaintiff company's claims. Court may turn down claims, even if Defendant did not file statement of defence LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates