Issue link: https://maltatoday.uberflip.com/i/441179
32 maltatoday, SUNDAY, 4 JANUARY 2015 Opinion T he First Hall of the Civil Courts, presided by Ms Justice Jacqueline Padovani Grima, on 22 December, 2014 upheld the request to issue a warrant of prohibitory injunction in Carmelo sive Charles Sciriha -v- JefPet Limited. Sciriha, an accountant by profession, asked the court to block the sale, or other mode of transfer, of the Jerma Palace Hotel and the surrounding properties. He explained that he was engaged in November 2009 by JefPet as a consultant and represented it when solving various financial difficulties, and in order to represent the company in negotiations in the sale of the hotel and the properties. The accountant submitted that when the negotiations for the sale of the hotel reached an advanced stage, his contract was terminated, after JetPet accused him of abandoning his contractual duties. Sciriha denied this. He claims that he still has to be paid in accordance with his engagement contract of €3.5 million. JefPet Limited replied to this application by claiming that the application is null and void, in accordance with Art 831 and 832 of the Code of Organisation and Civil Procedure, since the application did not mention the sum claimed by Mr Sciriha. Another plea was with regard to the merits of the case in that there is no prima facie claim. JefPet agreed that the parties entered into an engagement agreement on 15 November, 2009 and Mr Sciriha's return was to be 5% of the selling price of the property, and other considerations, which amounts to €3,525,000, excluding VAT. This will be due when the sale of the hotel takes place and not before. In fact, the property has not been sold nor is there a promise of sale. According to the engagement agreement there were two ways how it could be terminated, either by mutual agreement or unilaterally by any of the parties. In fact JefPet had written to Sciriha and gave six months' notice. Sciriha replied that there was no need for that notice. The Court examined the evidence, where Sciriha testified that JefPet Limited was purposely set up to purchase and sell the Jerma Palace Hotel. The company owes the banks €9 million, but has the hotel and the surrounding lands as assets. As their consultant he had spoken to a number of potential investors without any compensation and currently negotiations are being carried out with a particular investor, however, his contract was cut short. He also agreed that his compensation was a success fee, however, if the contract is terminated they would have to agree on the amount of compensation. Geoffrey Montebello for JefPet testified that he thought that their accountant did a good job and wanted to pay him. Ms Justice Padovani Grima held that the law on warrants provides for two elements. The first is that the warrant must protect a pretended right and that the court must be satisfied prima facie that the right exists. Therefore the right claimed must exist prima facie and not be merely be a difficulty. The Court quoted a previous judgement Grech -v- Manfred decided on 14 July, 1988, which held that the court must use the objective test and therefore, the court should not have any discretion in establishing whether there is a prima facie right. In fact this procedure is an extraordinary procedure and should be used only to protect a right which may be irremediably lost. The court held that in this particular case, it is clear that Sciriha has a prima facie right to be paid. The Court disagreed that the application is null because it did not mention a figure, since it mentioned circa €3.5 million. The Court also quoted Montebello, who held that he would like to pay Sciriha. The court moved to uphold the request to issue a warrant of prohibitory injunction against JefPet Limited. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A n outline planning application entitled "To convert soft stone quarry into an open storage premises, soft landscaping areas and restoring of existing agricultural premises" was turned down by the Environment and Planning Commission after it held that "the replacement of the existing field into maintenance and servicing garages would lead to an intensification of industrial development outside development zone" in conf lict with Structure Plan Policy SET 11, which in turn prohibits any form of development outside scheme. The Commission made also reference to Structure Plan policy SET 12 in that applicant failed to bring sufficient justification in support of his proposal. The Commission concluded that the proposed open storage is located within an area of agricultural value where "only building structures and uses essential to the need of arable agriculture are permitted". In reaction, applicant appealed the Commission's decision, insisting that his application consisted of an "outline type" which essentially means that if his request were accepted in principle, the Commission could impose those design parameters which it deemed fit. In addition, appellant remarked that the case officer had sent him an email stating that the Directorate found no objection to the proposal. For his part, the MEPA case officer rebutted by stating that the conversion of existing agricultural land into small industrial garages "does not equate with the conversion of a disused quarry into an open storage area". The case officer further underlined that the Directorate had previously found no objection to applicant's proposal since it was being assumed that the open storage was about to take place within a disused quarry, while it later transpired that the site was in fact an open field. To this end, the case officer maintained that open storage development may be permitted only on sites which do not consist of good quality agricultural land. In its assessment, the Environment and Planning Tribunal made reference to the Open Storage policy document which expressly provides that open storage facilities may be favourably considered in disused quarries not identified for other purposes in approved development plans as well as land outside development zones contiguous to land zoned for industrial use. In this case, the entire site covers an area of circa 16 tumoli of land, of which 7,600 square metres relate to a disused quarry. The Tribunal maintained that the proposal could be considered favourably on condition that the proposed interventions are limited to the quarry precincts. Against this background, the Tribunal ordered the Planning Commission to issue the permit subject to design conditions which it deemed fit in the given site circumstances. Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law Robert Musumeci is an architect. He also holds a Masters degree in Conservation and a degree in law. robert@rmperiti.com Open Storage policy document: open storage facilities may be favourably considered in disused quarries Robert Musumeci MEPAwatch Tribunal orders Planning Commission to issue design conditions for open storage Accountant blocks sale of Jerma Palace Hotel