Issue link: https://maltatoday.uberflip.com/i/459448
32 maltatoday, SUNDAY, 8 FEBRUARY 2015 Opinion M r Justice Joseph Azzopardi, in the case Dr Kris Borg -v- Piraeus Bank AE et on 30 January, 2015 listed the order in which creditors of a ship had to be paid following its sale. Dr Louis Cassar Pullicino on behalf of Piraeus Bank filed an application in order for it to withdraw from court €2,685,781.12 and a further €14,218.88 in favour of Francis E. Sullivan Company Limited. The bank explained that €3,200,000 was deposited in court representing the price of a ship, the mv Triantafillos. From the acts of the case it resulted that Piraeus Bank was owed €30,024,326, €14,218.88 to Francis E. Sullivan Co Ltd, Dr Philip Manduca on behalf of Hempel Coating (Hellas) SA was owed €18,704, Dr Keither Borg on behalf of Thermaikos Shipping & Trading Ltd was owed €16,519, Dr David Gonzi on behalf of Destel Marine Limited was owed €81,053.24, Dr Joseph Mizzi on behalf of Global Marine Supplies Spa was owed €12,198.62, Dr Larry Gauci on behalf of KPI Bridge Oil Limited was owed €163,696.49 and Dr Tonio Grech, who represented Taxidia Tourismos Anyland Travel Ltd €28,544, Issam Zeitone €25,035, Paoiutis Charalmobos €19,932 and Elia Papageergiou €16,506 and Maroulis Spyidon for €5,000. The bank further explained that the debt concerned a mortgage, which was converted into an executive title and the other debts that the vessel incurred amounted to €377,188.48. The bank argued that even if the other creditors ranked before, the bank would be still entitled to withdraw the balance and therefore, it did not make sense that such a considerable sum did not remain in court with a loss in interest. Taxidia objected to Francis E. Sullivan being allowed to withdraw its debt, since it was a creditor as the other creditors were and did not fall under the criteria of withdrawal of monies mentioned in Article 422 of the Code of Organisation and Civil Procedure. The same company also objected that the bank withdraw any sum according to Article 416 of the Code of Organisation and Civil Procedure, other claims may be filed within one month from the opening of the competition of creditors and this has not taken place yet. The bank declared in court that it had paid €237,894 to the crew and was subrogated with their rights. The Court listed the four debts which ranked in the competition of creditors of the price of the vessel. These were Dr Cassar Pullicino on behalf of Piraeus Bank and the subrogated rights of the crew after paying their wages, Dr Grech who represented the captain and four engineers for the salaries and repatriation expenses, Dr Keith Borg for Thermaikos Shipping & Trading Ltd and Dr Joseph Mizzi for merchandise as represented by global Marine Supplies Spa. The Court pointed out that according to Articles 50 and 54A of the Merchant Shipping Act, the wages of the captain and crew ranked first. The travel expenses for the repatriation of the crew does not fall under the same category, but is found in Article 50(h) of the same Act which states: "wages and other sums due to the master, officers and other members of the vessel's complement in respect of their employment on the vessel, including costs of repatriation and social insurance contributions payable on their behalf ". The Court held that the whole amount claimed by Dr Grech should be ranked in the same way as the subrogated claim of Dr Cassar Pullicino. Then ranked after it, was the bank, and following this, the other creditors. The court ruled that court expenses rank first according to law and therefore, should be paid first, then ranked second is the subrogated rights of the crew's wages and repatriation expenses. Ranking third is the mortgage of €30,024,326 in favour of the bank and then fourth ranked Dr Keith Borg and Dr Joseph Mizzi's clients. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application contemplating minor alterations and "change of use" from a garage (which applicant described as a store) to a small scale car showroom was turned down by the Environment and Planning Commission, but was then authorised by the Environment and Planning Tribunal. In considering the application the Commission held that "the proposal will remove the existing parking spaces for the building and so it would conflict with Structure Plan policy TRA 4 and PA circular 3/93, which in turn seek to ensure that appropriate provision is made for off-street parking". Moreover, the Commission held that "the proposed development will generate additional on-street parking on the distributor road network, which in turn would interfere with traffic flows", creating a safety hazard. Following the decision, the applicant lodged an appeal before the Environment and Planning Tribunal, stating that the premises in question were used as a store and hence "there are no existing parking spaces within the premises which were due to be lost". The applicant further maintained that the size of the premises indicate clearly that "it was never constructed for domestic use, so much so, that the entire street is riddled with similar developments and with very heavy commitment". With regard to the alleged safety hazard, the applicant stated that the proposed use is of a small scale. For its part, the authority reiterated its position, insisting that the applicant had in fact submitted a similar request way back in 2009, which application was indeed refused by both the Commission and the Tribunal after it was held that applicant failed to "provide any evidence to show that the premises were legally developed as a store". As a final point, the Authority maintained that a use or an activity is considered legitimate if supported by a trading licence issued prior to April 1994. In its assessment, the Tribunal observed that the site in question is located adjacent to similar commitment. But even so, the Tribunal asserted that Policy FL-GNRL-1 (which permits the proposed use) took effect in 2013, following commencement of the appeal proceedings. Moreover, the Tribunal underlined that in the event that the applicant's request is entertained, a parking space would be provided in front of the premises, concluding that it is more desirable to have a car showroom abutting a distributor road rather than a garage, since fewer vehicular movements (in and out of the premises) are expected. In the circumstances, the Tribunal found in favour of applicant and ordered the MEPA to issue the permit. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law A car showroom abutting a distributor road is more desirable than a garage, since fewer vehicular movements (in and out of the premises) are expected According to the Merchant Shipping Act, the wages of the captain and crew ranked first Robert Musumeci MEPAwatch Showroom abutting a distributor road seen as a better option Court divides price of ship among creditors