Issue link: https://maltatoday.uberflip.com/i/234240
41 Classifieds maltatoday, SUNDAY, 29 DECEMBER 2013 Company directors and their wives ordered to pay the bank M r Justice Gino Camilleri on 20 December 2013 ordered the former directors of Direct Marketing Services Limited together with their wives to pay the Company's unpaid overdraft account after their signed as personal guarantees. This decision was delivered in a lawsuit in the name of Bank of Valletta plc –v– Direct Marketing Services Limited, Dr Renzo Porsella Flores and PL Rose Sciberras as curator of absentee Martin Schembri; Joan Schembri, Alex Zammit; Martin Zammit and Roger and Marie Therese Scotto. BOV claimed in their writ that they are owed Lm25,599.14 for an overdraft facility it gave to Director Marketing Services Limited together with interest from 1 October 1998. On 29 April 1995 the parties entered into a public deed in the acts of Notary Richard Vella Laurenti. They also signed four private writings in October 1992, 1993 and in August 1995. Martin and Joan Schembri, Alex Zammit, Marina Zammit Malcolm Mifsud mmifsud@mifsudadvocates.com.mt and Roger and Marie Therese Scotto guaranteed in solidum the Company's debts towards the Bank. The defendants received a judicial letter dated 24 July 1998 from the Bank calling upon them to pay the outstanding bill, but this has not been paid. Marina Zammit defended the claim that she was forced by her husband Alexander to sign the guarantee. Roger and Marie Therese Scotto stated that the Bank deceived them when they signed because it should have known that the accounts presented were not truthful. There was no evidence of moral or physical violence and if the violence did occur it must be proved that it is a determining factor Furthermore, they guaranteed a limit of Lm15,000 and the guarantee which did not have a guarantee was for Lm5,000. Alex Zammit claimed that he had resigned as a director of the company due to the financial problems it had ran into. He was not informed of the auditor's report. Mr Justice Camilleri examined the pleas raised by the defendants. He first examined Marina Zammit, who claimed that although she did sign the guarantee, that she only did so because she was forced by her husband. The Court examined Article 974 of the Civil Code to determine whether if the consent is given by mistake or through violence, that consent is not valid at law. This must be proven by the party who is claiming violence, but the Court held that there was no evidence presented. There was no evidence of moral or physical violence and if the violence did occur it must be proved that it is a determining factor, as stated in Article 978 of the Civil Code. The Court therefore turned down this plea. The court then examined the Scotto pleas in that the Bank deceived them in signing the guarantee, when it should have known that the company's accounts were irregular and did not reflect the true situation. However, Mr Justice Camilleri did not see that the Bank did not withhold any information from them. The Scottos further pleaded that their guarantee was limited and this was upheld by the Court since they presented the documents that showed this and they are bound only by Lm15,000 and Lm5,000. Giovanna Schembri held that she had no connection with the company, however, the court held that Article 1925 of the Civil Code states that a guarantee is a contract with the credit that the guarantor will pay the debt if the principle debtor fails to effect payment. Since she signed the guarantee, she became bound to pay the company's debt once the company did not pay itself. Therefore, the bank had a right to seek payment from her. Alex Zammit was held to be in default, since he did not defend that Bank's action. The Court therefore, concluded that all the defendants had to pay €59,646 in solidum to BOV together with interest from 1 October 1998. Malcolm Mifsud is a partner with Mifsud & Mifsud Advocates Tribunal not concerned about ownership issues A planning application entitled, 'To carry out internal alterations and construct a lift shaft' in a Valletta property (located in Old Mint Street) was approved by the Environment and Planning Commission after it was held that the proposed structural interventions were in line with planning policy. The permit was approved even though a third party alleged that the application form contained a false ownership declaration. The permit was nonetheless issued subject to a condition stating that "if the declaration of ownership, as contained in the application form, is determined as incorrect by a Court of Law, then the said Court of Law can declare this development permission as null and void". Under normal circumstances, planning permits carry a standard condition to the effect that "the development permission does not remove or replace the need to obtain the consent of the land/ building owner to this development before it is carried out", which condition was also included in this permit. The third party nonetheless appealed the said permit before the Environment and Planning Robert Musumeci MEPAwatch Tribunal, insisting that he is the "rightful owner" of the site, adding that he was not been duly notified, in his capacity of an owner, as required by MEPA regulations. To this effect, the objector insisted that the permit should be revoked since submissions were not in line with the provisions at law. On its part, the MEPA countered that despite objector's allegations of him not being notified about the application, he duly registered his objections within the stipulated legal time frames. Even more so, the MEPA maintained that the permit conditions contain sufficient safeguard clauses, so much so that if the declaration of ownership, as contained in the application form, is determined as incorrect by a Court of Law, "the said Court of Law can declare the development permission as null and void". As a final point, the MEPA contended that the planning tribunal has no competence to decide on issues concerning legal titles. In its conclusions, the Tribunal observed that applicant declared to be the sole owner of the property. At the same time, the Tribunal noted that the objector failed to bring any documentary evidence demonstrating that he is the actual site owner as alleged. But even so, the Tribunal held that its MEPA gives Courts right to revoke a permit if the declaration of ownership, as contained in the application form, is determined as incorrect jurisdiction was limited to decide on planning issues, adding that ownership considerations are to be dealt with before a court of law. In conclusion, the Tribunal noted that the permit did not confer any ownership rights. The appeal was thus rejected. robert.musumeci@rmperiti.com